By Nancy Anderson, ContributorJAMAICA IS a signatory to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. There is no domestic legislation that incorporates the procedures, definitions and criteria set out in these international documents.
A Handbook on Procedures and Criteria for Determining Refugee Status has also been produced by the United Nations High Commissioner for Refugees from 1992 to assist countries to adhere to the provisions of the Convention and Protocol.
Respect and adherence to Jamaica's treaty commitments should bind the authorities to these procedures. It would however be much preferred for Jamaica to legislate these procedures to ensure certainty, fairness and equality.
All immigrants to Jamaica are interviewed by an immigration officer. If they wish to apply for asylum, the officer will assist the asylum seeker to complete an application for asylum.
Applicants are interviewed by an Eligibility Committee comprised of three officials, one each from the ministries of Foreign Affairs and National Security and a representative from the Attorney-General's office.
After interviewing each applicant separately, this Eligibility Committee makes a recommendation in each application to the Minister of Foreign Affairs. The Minister decides whether or not asylum will be granted to each applicant. Notice must be given to the applicant setting out the result of his application.
The criteria for granting refugee or asylum status to an applicant are set out in Article 1(A) of the 1951 Convention as:
" owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, (the asylum seeker) is out-side the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country." The seminal phrase "well-founded fear of being persecuted" contains two elements the subjective element and the objective element.
The subjective element relates to feelings of fear in the individual, the state of mind of the applicant. The objective element relates to the facts to demonstrate that his feelings of fear are well-founded.
The Handbook referred to above states that the subjective element is "inseparable from the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions."
Paragraph 42 of the Handbook assert that the applicant's fear should be considered to be well-founded if he can establish to a reasonable degree that his continued stay in the country of origin has become intolerable for him, for protection-related reasons or should he be returned the same reasons would make his life intolerable there.
While the Handbook highlights the emphasis that should be placed on each individual's fears, it also asserts that there must be consideration of the applicant's credibility taking into consideration the following:
* Applicant's personal and family background
* Applicant's membership of a particular racial, religious, national, social or political group
* Applicant's own interpretation of his situation
* Applicant's personal experiences
Finally, an applicant's statements must be considered in the context of the relevant background situation in the applicant's country of origin. Knowledge of the conditions in the country of origin at the relevant time must be considered when a determination is made of the application.
The authority determining the application must not, however, pass judgment on conditions in the country of origin and not view the applicant's statements in the abstract.
In February 2004, Haitians began arriving in Jamaica and many of them subsequently applied for refugee status. The political situation in Haiti at the time and in the months to follow is easily established and has been considered by the Government of Jamaica as high as in meetings of the Prime Ministers of CARICOM.
Each individual applicant's application, therefore, must be considered with this background in mind. There can be no consideration of the argument that if one "group" be granted refugee status this would ipso facto result in a "flood" of asylum seekers from the same source.
This argument is spurious when applying the 1951 Refugee Convention. The Convention demands a personal consideration of whether an individual has a well-founded fear of persecution; this is not a general or group determination.
Two hundred and eighty-one applications were submitted by the Haitians that arrived in Jamaica earlier this year and, on September 30, 2004, all 281 applicants were written notifying them that their applications had been refused. They were given seven working days to appeal this decision.
Initial findings are that the majority of these decisions will be the subject of an appeal. The appeals will involve single men and women as well as families and siblings. The appeals will present the individual situation of each applicant based on the definition of well-founded fear of persecution discussed in this article.
Meanwhile, all the appellants must be allowed to remain in Jamaica pending the determination of their individual appeals.
Time must also be given to the applicants' legal representatives to prepare these appeals.
The Independent Jamaica Council for Human Rights (IJCHR) is committed to assisting in the appeal process and will need the assistance of attorneys and law students to interview and document each applicant's individual case.
* Nancy Anderson is an attorney-at-law and IJCHR legal officer.
