Disparities in the Issuance of Refugee Cards by the UNHCR in Indonesia: Vulnerability and Risk Mitigation

1. Introduction

Between 1948 and the 1980s and 1990s, and since the end of the Cold War (1980s and 1990s), the global situation has continuously changed. Simultaneously, new issues have emerged at the international level, relating to and impacting the definition of refugees, the meaning of the refugee issue, and how to determine the scope of the rights and obligations of states (country of origin, transit, or final destination) under international and national law (Aleshkovski, 2016). Of particular note is the impact of modernization and globalization, which has given rise to the movement and displacement of people for various reasons, from one region or country to another (Khanna, 2020). Concretely, the drivers of population movement from one country to another are massive environmental damage (climate change, global warming, and sea level rise), the welfare gap, the ever-widening gap in civilization between developed (rich) and developing (poor) nations, and the vulnerability of poor countries to economic turmoil and crisis (Kim, 2017). Furthermore, the global impact of the end of the Cold War (Western vs. Eastern Bloc) in the late 1980s should not be overlooked, which did not immediately lead to the disappearance of armed conflicts (international and non-international). This includes asymmetric warfare between states and armed groups (terrorists, insurgency-belligerency, and others). All of these developments have triggered migration (movement/movement) on an individual-family scale or on a large scale (mass migration) from one region or country to another perceived as providing greater security and survival (Bauer & Zimmermann, 2018).

In fact, Indonesia has long faced the presence of (international) refugees. These refugees include boat people, including those fleeing the Vietnam War (1965-1975), Rohingya fleeing oppression in Myanmar-Bangladesh (2010s), the Hazara ethnic minority fleeing Afghanistan (1980-1990s), and Syrians fleeing the turmoil of war in the Middle East-Africa (2010s). Conversely, a number of Indonesians have been political refugees (Asih, 2015). They lost their citizenship and, due to fear of persecution, chose to become refugees in their home countries and/or request asylum. The Indonesian government has even requested assistance from the United Nations High Commissioner for Refugees (UNHCR), to take care of those classified as internally displaced persons due to the loss of their homes due to the natural disaster in Aceh in 2004 (Al Imran, 2022).

In handling refugees and asylum seekers, the important thing to pay attention to is political handling (Fine, 2020), starting from bilateral policies between countries that become The country of origin of asylum seekers and refugees, or the country of origin and the host country or country receiving refugees (Çelik & White, 2022). Political and policy standards for handling refugees can be implemented through legal regulations for the protection of asylum seekers and refugees through:

1.     Access to international legal/human rights instruments related to asylum seekers and refugees, namely the 1951 Convention and its 1967 Protocol;

2.     Human rights instruments within each country's region. The Organization of African Union (OAU) implemented this through the 1969 Convention, and through the 1985 Schengen Convention and the 1990 Dubin Convention by European countries, and through the 1984 Cartanegara Declaration by countries in the Americas, particularly Latin America;

3.     National legislation programs addressing refugees. National laws must be developed through a comprehensive National Legislation Program and in accordance with universal principles of refugee protection.

Provisions regarding refugees from abroad are not expressly stipulated in all applicable regulations in Indonesia. However, in reality, the number of refugees (foreigners) originating from abroad is very large in Indonesia (Briskman & Fiske, 2016).

Indonesia is not a signatory to the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees. The two most important documents in refugee law, national law does not yet have adequate legal products to protect refugees, because Indonesia is not a country that ratified the convention on refugees (Liliansa & Jayadi, 2015). As a transit country, many refugees and asylum seekers initially transit for a short period in Indonesia before moving on to their destination country, where many asylum seekers and refugees initially intend to stay only for a short time before traveling onward to Australia (Mutaqin, 2018). As a non-signatory to the Convention, Indonesia does not conduct protection assessments, nor does it offer a pathway for refugees to achieve permanent residency there. Nevertheless, currently in Indonesia, there are more than 13,000 (thirteen thousand) asylum seekers and refugees, mostly from Afghanistan and Pakistan, but also from Myanmar, Iran, Sri Lanka, and other countries. This means that Indonesia will continue to face the problem of how to handle refugees present within its borders (Palmer & Missbach, 2019).

Presidential Regulation Number 125 of 2016 concerning the Handling of Refugees from Abroad was enacted on December 31, 2016, as a reference regarding the handling of asylum seekers and refugees originating from abroad who transit and reside in Indonesia before going to their destination country. Article 1 number 1 of Presidential Regulation Number 125 of 2016, one of the criteria for refugees from abroad is not seeking protection from their country of origin. In addition to regulating the definition of refugees originating from abroad, the Presidential Regulation on Refugees was established and enforced to implement the provisions of Law Number 37 of 1999 concerning Foreign Relations. The explanation of Article 27 paragraph (1) of the Foreign Relations Law, humanitarian issues are fundamental problems faced by refugees. Therefore, their handling should, as far as possible, not disrupt good relations between Indonesia and the refugee's country of origin. The authorized agency is delegated authority through cooperation with Indonesia to seek a solution to the refugee problem. The regulation regulates several other definitions, including what is meant by voluntary repatriation, consular notification, search and rescue, immigration offices, and so on.

On the one hand, one of the international principles in handling refugees both in the world and in Indonesia itself is the principle of non-refoulement, which means that every person who has declared himself a refugee or asylum seeker, the state is obliged not to return the refugees to their country of origin where their safety is threatened due to torture (Fitzgerald & Arar, 2018; Gammeltoft-Hansen & Hathaway, 2015). This principle has been recognized as part of customary international law, which means that even countries that are not parties to the 1951 convention must respect the principle of non-refoulement (Gil-Bazo, 2015; Goodwin-Gill, 2011; Allain, 2001). Meanwhile, on the other hand, the administration carried out by UNHCR in the first step of determining refugee status is checking the applicant's identity, where UNHCR at this initial stage, issues an asylum seeker certificate. Holders of these certificates are persons of concern to the UNHCR and must be specifically protected from forced return to their country, pending a final decision on their refugee status (Legido-Quigley, Chuah & Howard, 2020). These asylum seekers are not eligible for financial assistance from the UNHCR, unless they are deemed vulnerable (Long, 2013). However, these asylum seeker documents can eliminate the risk of deportation. The situation of not receiving financial assistance and being unable to return to their country creates a situation of uncertainty for these asylum seekers (Malmberg, 2021).

Data on several cases of involvement of asylum seekers in violations of the law in Indonesia over the 5 (five) years from 2012 to 2016 can be seen in the following table:

Table 1: Comparison Amount Cases and Foreign National Holders Document Seeker Involved Sanctuary​ Action Crime in Indonesia 2012-2020 Period

Source: Processing Directory Decision Supreme Court of the Republic of Indonesia 2012-2020

Based on this data, these asylum seekers were involved in criminal acts, such as human trafficking, due to the excessively long wait from asylum seeker status to the process of issuing refugee cards by UNHCR. Some had waited as long as four years as asylum seekers. Contrary to the first case, the cases listed in the Supreme Court directory suggest that foreign nationals tend to exploit the ease of UNHCR's document processing in Indonesia. These two contrasting cases point to the initial suspicion of inconsistencies in the issuance of refugee cards by UNHCR. Furthermore, previous research indicates that UNHCR's refugee status determinations do not meet required standards. These substandard conditions include providing detailed reasons for negative decisions and independent review of UNHCR decisions.

The most striking data, covered by foreign media, is the death of SJ, an asylum seeker who had been in Indonesia since 2000 and was declared a Final Rejected Person. The foreign national burned himself out of frustration after his refugee status application was rejected. There are reports of increasing mental health problems among the 14,000 foreign asylum seekers in Indonesia. SJ's case doesn't stop there. Having been declared a Final Rejected Person and unable to appeal, Sajjad Yaqub's family has become stateless. They are classified as stateless due to a lack of identity documents and the country of their former residence will not immediately accept the foreign national's re-registration. In Presidential Regulation Number 125 of 2016, Article 29 paragraph (1) can be carried out voluntary repatriation and deportation in accordance with the provisions of applicable regulations, but the obstacles faced are in the deportation process for foreign nationals with Final Rejected Person (FRP) status, due to the lack of documents, funding and reluctance to return home, as well as several ethnicities that cannot be deported because they are not recognized by the country Article 17, gives its own burden both in terms of humanity and in terms of state finances, because the International Organization for Migration (IOM) will only cover for FRP foreign nationals who wish to be given voluntary repatriation, not those who will be deported. Likewise with FRPs who will be carried out voluntary repatriation who do not have passport documents or passport-like documents where the process takes a long time at their respective embassies and cannot even process their travel documents.

From the data of reports of foreigners registered with UNHCR as of November 30, 2020, there is a disparity in the length of time the asylum seeker status is maintained from the date of registration of the asylum seeker compared to the data of the final date of the report, namely November 30, 2020, which is presented as follows.

Table 2: Comparison Time Span Between Registration Date from Seeker Asylum and Refugees

Source: Report UNHCR Periodicals on Persons Registered with UNHCR Data as of 30 November 2020

From the data, it can be seen that some asylum seekers have been registered as refugees for three to four years from the report, there are even seven people who still have asylum seeker status for nine to ten years after registration, until the last date of the report. The number of disparities is very significant, of the 3256 (three thousand two hundred and fifty-six) asylum seekers, 44.66% of these asylum seekers have held asylum seeker status for a period of one to two years. Meanwhile, for asylum seekers who have held asylum seeker status for a period of three to four years there are 45.98% of the total asylum seekers in that year. Meanwhile, for asylum seekers who have held asylum seeker status for a period of five to six years there are 8.9% of asylum seekers. Meanwhile, for asylum seekers who have held asylum seeker status for a period of seven to eight years there are 0.27%. And for asylum seekers who have held asylum seeker status for a period of nine to ten years only 0.21%. Therefore, the average asylum seeker holds asylum status for two years, while the largest number of asylum seekers holds asylum status for three to four years. While the percentage of cases is small, the number of asylum seekers holding asylum status for five to ten years is certainly significant. However, humanitarian considerations, and previous cases of asylum seekers experiencing excessively long waits to become refugees and depart, are significant. One suicide case involving an asylum seeker who waited too long to become a refugee has captured global attention through news reports. We cannot wait for another case to provoke international scrutiny of asylum seekers in Indonesia.

Based on the above background, several questions can be identified that will inform the problem formulation:

1. Why does this disparity occur in the refugee card issuance process?

2. What mitigation measures can be taken to reduce this disparity and ensure legal certainty?

2. Method

The research method used in this paper is empirical normative legal research. Empirical normative research is legal research concerning the enforcement or implementation of normative legal provisions in action in each specific legal event that occurs in society (Efendi & Ibrahim, 2018).

In this study, data sources are divided into two: primary data and secondary data. Primary data is data obtained directly by the researcher, such as interviews with informants. At UNHCR, the data collected included refugee data and the length of the process from asylum seeker to refugee status. Interviews with UNHCR officials also examined the disparity in the processing time for refugee cards, as well as the interview standards and procedures used. Primary data, in the form of interviews, examined the considerations taken in several cases of fast and slow refugee card issuance, the standards used, the procedures for substantial consideration of the issuance, and the considerations taken in final rejections of refugee card requests. In addition, primary data collected from the Kalideres Immigration Detention Center (Rudenim Kalideres) includes data on the handling and supervision of asylum seekers, the number of asylum seekers handled by Rudenim Kalideres, and interview data related to obstacles and difficulties in handling asylum seekers. Primary data will then be collected from the Directorate of Immigration Traffic, including the number of reported foreign asylum seekers involved in criminal violations, as a result of coordination with relevant agencies, the number of asylum seekers subject to deportation and voluntary repatriation, and primary data from interviews related to the coordination process and obstacles with the UNHCR.

Secondary data will be compiled from existing sources, such as previous research, journals, regulations, and websites relevant to the research topic. The journals used cover asylum seekers and refugees, including the history of the development of refugee protection regulations. Secondary data from websites includes digital media coverage of asylum seekers and refugees, including the self-immolation incident that garnered global attention. The regulations used are regulations from international conventions on human rights and asylum seekers or refugees such as the 1951 Refugee Convention and the 1967 Protocol on the Status of Refugees. Meanwhile, for the existing laws and regulations in Indonesia, those used are regulations that regulate the handling of asylum seekers and refugees in Indonesia, such as Law Number 37 of 1999 concerning Foreign Relations and Presidential Regulation Number 125 of 2016 concerning the Handling of Refugees from Abroad.

3. Discussion

3.1. Reasons for Disparities in Refugee Card Issuance in Indonesia 

3.1.1. General Obstacles to UNHCR's Refugee Card Issuance 

In general, the profile of asylum seekers in Indonesia can be seen in the following table.

Table 3: Search List Comparison Asylum and Refugees Based on Registration Year

Source: Data Management of Registered Persons with UNHCR 2020-2021

The data shows that the number of asylum seekers in 2021 was 3,309, meaning that from 2020 to 2021, approximately 251 asylum seekers had their status changed to refugee. According to UNHCR reports for 2020 and 2021, no asylum seekers were reported as being processed for Final Rejected Person (FRP). With the addition of 68 new asylum seeker statuses in 2021, the data above shows that the number of refugees is more than three times the number of asylum seekers. The author then confirmed this figure with the UNHCR during an interview with DA, who explained:

"There are more refugees than asylum seekers, and they are awaiting refugee status determination from the UNHCR. As of July 2021, there were 10,010 refugees, while there were 3,346 asylum seekers. This is a misconception, suggesting that there are more asylum seekers and that they are all categorized as international refugees based on Presidential Decree 125 of 2016."

Referring to human rights, philosophically, the Weltanschauung, or worldview underlying human rights, is grounded in a system of justice based on the principles of freedom and equality. Therefore, the obligation to respect others is enshrined in the main formulation of human rights, namely the principle of equality. According to the author, the principle of equality in human rights should not be considered insignificant. This principle of equality requires that no rights be insignificant, including those of the more than 3,000 asylum seekers, especially those whose status has remained asylum seekers since 2010. Since the 2015 registration year, more than five hundred people remain asylum seekers. In this current era of national deprivation of human rights, the category of people without rights (refugees and stateless persons) has emerged. Those without rights, such as refugees, lack a nation-state through which they can claim citizenship. This broadening of the definition prevents the notion of human rights from being merely another name for the rights of citizens of a nation-state. It also encompasses the protection of refugees, often referred to as modernizing minorities. Therefore, the status of asylum seekers must be addressed immediately, meaning the process of determining them must be completed immediately, as it positions them as subjects without rights. This process falls under the UNHCR, a humanitarian agency, which must immediately change their status to ensure the rights of those with refugee status. This process allows for expedited placement.

Naturally, the status sought by asylum seekers is refugee, and therefore, the determination of this status is linked to the process implemented by UNHCR. As a humanitarian agency, UNHCR should adhere to international humanitarian law standards, the goal of which is to ensure that every process undertaken for an individual meets the internationally agreed due process rights, or the right to fair process. Being an asylum seeker creates several uncertainties, including unclear funding from UNHCR, unclear status, and most importantly, unclear processes and stages that align with the asylum seeker's initial desire, namely refugee status. This unclear process certainly does not comply with the standard right to due process.

3.1.2. Obstacles to Immigration Supervision

According to Presidential Regulation Number 125 of 2016, Article 2 paragraph (1) of the regulation is fundamentally based on the principle of cooperation between the government and UNHCR, as is the immigration supervision of asylum seekers. This supervision is crucial because Indonesia is not a social vacuum, as the rules state that asylum seekers are allowed to stay and are not detained. Asylum seekers who come into direct contact with the community will undoubtedly pose certain problems. As stated by RS, Head of Registration, Administration, and Reporting:

"Problems always exist. While all the refugees' needs have been met, in reality, they still seek income, some working, and others trading. For example, there were complaints that someone was opening or buying and selling motorbikes in the parking lot. The owner called, saying the problem might be a lack of funds, so they're looking for side jobs, which shouldn't be allowed because they're covered by IOM, so it shouldn't be allowed. The second problem is that the local community may complain that they have difficulty accepting refugees, such as in Bekasi, where they find it difficult to accept them, citing differences in our culture. For example, the local community is asleep, but the refugees are still awake. This leads to reactions from the surrounding community, not to mention mixed marriages, which can cause problems."

The interviews revealed that the social problems faced by asylum seekers include cultural conflicts and violations of established regulations regarding refugees in Indonesia. The longer a refugee stays, the more protracted the social problems that can arise, disrupting security and public order. Compounding the problem of refugee stays is the existence of an intermediate status, which further extends the duration of their refugee status. This intermediate status is referred to as asylum seeker status. If this intermediate status can be clarified, whether it is rejected or confirmed as a refugee, immigration supervision can be implemented. Asylum seekers, as stipulated in Article 39, are subject to deportation and can only be implemented if it is clear that their application for refugee status has been rejected.

It is recognized that there are unique obstacles to the repatriation of asylum seekers as FRPs who are stateless or whose country is unstable. However, for asylum seekers with passports, this should not be a problem. Data on asylum seekers with passports is presented below.

Table 4

Search List Comparison The Sanctuary That Has Document Passport Based on Registration Year

Source: Data Management of Registered Persons with UNHCR 2020-2021

As explained by the MFA:

"Most importantly, we don't receive regular and accurate final rejection data. Secondly, we don't receive valid and accurate data on independent refugees in Indonesia. The data on refugees, addresses of independent refugees, and final rejects in Indonesia, if any, are available on a monthly basis. So, we have to find it ourselves, be more proactive, and work together. This is impossible for immigration alone. In 2019, there was a data-sharing MOU, where UNHCR only provided its data to the Indonesian government through the Ministry of Foreign Affairs. So, when data is needed through the Ministry of Foreign Affairs, the relationship is smooth, but it seems there needs to be transparency within the framework of joint functions. The sharing of final reject data and data on independent refugees still needs improvement."

The principle of cooperation in the presidential regulation above should be the overarching principle in the implementation of Presidential Regulation Number 125 of 2016, including immigration oversight. However, the interview results above indicate that delays in information delivery actually hamper immigration oversight for asylum seekers and FRPs. With the existence of asylum seekers who have passports, of course, if it has been determined that the asylum seeker is an FRP, fast information can certainly help to speed up the coordination of voluntary repatriation or deportation of the FRP. As explained by HS:

"...There is coordination with the Ministry of Foreign Affairs in the form of data sharing based on an MOU between UNHCR and the Ministry of Foreign Affairs. However, what is unfortunate is that, as the Directorate of Human Settlements and Inspection, it is very slow to obtain this data. The existing data cannot provide real-time data on the total number of final rejects, how many have been repatriated, or who is currently in Indonesia. The available data is only per month, for example, in January, where we would receive the report in March, a month has passed. I initially assumed that this data sharing with the Ministry of Foreign Affairs would expedite our data collection, but it has turned out to be slow, making it difficult to present data to our leadership regarding the actual number of refugees, except for the number of refugees in CH. There is actually an MOU between UNHCR and the Indonesian government. One of the articles stipulates that UNHCR must also inform and coordinate with the Indonesian government regarding the results of registration and initial verification before determining the status of refugees and asylum seekers. This is what we are actually demanding from UNHCR: transparency from them. There is a clear MOU, but they haven't communicated it, so what we found is that In the field, the person in question holds a KITAS and officially entered. Only one party states that the foreign national is seeking asylum because of uncomfortable conditions in his/her country. Carrying official documents means he/she cannot be granted a refugee card. These conditions were not communicated to the Indonesian government, specifically the Ministry of Foreign Affairs or the Directorate General of Immigration, to screen and review the situation. So, there is something amiss in UNHCR policy, and in the implementation of the MOU, particularly in informing and coordinating with the Indonesian government regarding the results of the initial verification in determining refugee status.”

The interviews revealed that having immigration documents from the foreign national would certainly expedite the existing process, expediting the repatriation or deportation process from the FRP. Likewise, regarding the initial status determination, the Directorate General of Immigration should not be excluded from these processes. Its input could be very useful in providing additional information that could expedite the status determination of the asylum seeker. As the principle of handling refugees in Indonesia with international institutions is based on the principle of cooperation, this principle of cooperation includes the issue of immigration supervision, so the determination of refugee status must also provide space for input from the receiving government, in this case the Directorate General of Immigration, in the process of determining refugee status, as part of the Government that provides the mandate to handle refugees and asylum seekers in Indonesia.

3.1.3 Obstacles to Transparency in the Refugee Status Determination (RFD) Process by UNHCR in Indonesia: The Well-Reassured Fear Criteria

According to IS, UNHCR's initial registration process is the initial stage in determining refugee status. It involves assessing the basic biographical data, their reasons for fleeing the country, and their inability to return. Theoretically, based on the three-stage theory, the first step is to assess the underlying fear that led to the asylum seeker's asylum, often referred to as "well-founded fear." Measuring well-founded fear involves assessing the subjective element of fear when evaluating the risk of persecution. Often, the flight from one's country of origin is difficult, and the asylum application itself is sufficient to generate subjective fear. According to DA, the issuance of an asylum seeker card is necessary to avoid the risk of detention. The UNHCR Refugee Status Determination Standards Manual (hereinafter referred to as the UNHCR RFD Guidelines) explains that the qualification "well-founded" is added to the element of fear—the state of mind and subjective condition. This implies that not only the individual's frame of mind determine their refugee status, but this frame of mind must be supported by objective circumstances. Therefore, the term "well-founded fear" contains both subjective and objective elements, and in determining whether a well-founded fear exists, both elements must be considered. Technically, the process of rapidly determining whether an individual is an asylum seeker is only a preliminary step. In addition to subjective elements, objective factors must also be considered during the "well-founded fear" examination.

One important objective consideration is the fact that the foreigner entered through an international airport using a visa and other official documents.

Although the European Commission and the Court of Human Rights have clarified that the phrase "within its jurisdiction," as contained in the General Instrument governing the protection of human rights, includes the responsibility to receive asylum seekers in the international airport zone, the entry of asylum seekers using official documents can certainly be a factor in the objective scale of the well-founded risk, as access to these documents by asylum seekers involves several actions requiring government authority in their country of origin, which is certainly questionable in light of the persecution they are experiencing. If the persecution is related to the persecution of political groups or countries, the ability of asylum seekers to access the authorities of those countries certainly raises major questions about the reality of the persecution. Furthermore, as G explains:

"Most asylum seekers who have used smuggling networks prefer to proceed legally rather than break immigration laws and take risks. The fact that asylum seekers cannot use legal means to be admitted to countries that offer them adequate protection leads to the choice of smuggling and the concept of 'illegal' migration. A report on human trafficking and asylum seekers in the UK explains that there is no clear distinction between human trafficking and commercial trafficking. In some cases, agents are both criminals and lifesavers. For social scientists, smuggling implies a reconceptualization of international migration, which has traditionally been seen as a relationship between migrants and host governments that aim to control access to their territory. Furthermore, smuggling blurs the distinction between legal and illegal migrants, as smugglers may intentionally help facilitate legal forms of migration at one stage or another in the migration process. For example, under international refugee law, it is not considered a crime for asylum seekers to enter a country illegally. Smugglers, on the other hand, may obtain a valid visa with a valid passport, but with a forged work certificate and invitation letter. At different stages, migrants thus drift in and out of legal status. As for Iraqis, their recruitment does not take place in Iraq, but in Jordan. This country is a nodal location because it concentrates various prerequisites for smuggling to thrive and function, none of which are available in Iraq: foreign embassies (Western and non-Western), Jordanian citizens or citizens of other countries whose passports can be bought or stolen, the technology necessary to forge documents, untapped internet and telephone lines, a liberal banking system that allows international money transfers.”

The above conditions suggest that asylum seekers using air transportation are potentially engaging in illegal means. These actions constitute violations that should be addressed through immigration law enforcement. According to IS, the UNHCR certainly does not want to grant refugee status to individuals who are actually fleeing prosecution (fugitives). Prosecution or prosecution begins with the legal facts of a violation. The focus of resolving the asylum seeker process should not hinder the investigation of cases that have the potential for violations. Potential violations leading to persecution should not be viewed solely in relation to the country of origin, but also in the destination or transit country, where potential violations of travel documents are one of the potential violations that can be considered prosecution. The UNHCR's RSD Guidelines explain:

"Therefore, possession of a passport cannot always be considered proof of loyalty on the part of the holder, or an indication of the absence of well-founded fear. A passport may even be issued to someone undesirable in their country of origin, solely for the purpose of securing their departure, and there may also be cases where a passport is obtained clandestinely. In conclusion, therefore, possession of a valid national passport alone does not preclude refugee status. If, on the other hand, the applicant, without good reason, insists on retaining a valid passport from a country whose protection they are allegedly unwilling to avail themselves of, this may cast doubt on the validity of their claim to "well-founded fear." Once recognized, a refugee should normally not retain their national passport."

The guidelines make it clear that the presence of a valid passport or travel document can be an indication, but not a guarantee, of the existence of such a condition. Therefore, the existence of these two possibilities is recognized and is also used as a reference in determining the existence of well-founded fear, which will be explored further.

Immigration authorities are aware of this, and in the interview with HS, Head of the Detention Section at the Immigration Detention and Deportation Sub-Directorate, he mentioned refugees carrying official documents. Furthermore, the interview with MFA, Head of the Illegal Immigrants Section at the Immigration Detention and Deportation Sub-Directorate, explained:

"During the determination process, there should be representatives from the Indonesian government, for example from Immigration, the Ministry of Foreign Affairs, the Political, Legal, and Security Affairs Office, the Police, or perhaps the Ministry of Home Affairs at the Directorate General of Police and Public Order within the National Vigilance Directorate. Refugees should not possess documents issued by the Indonesian government, such as entry visas. Therefore, Indonesia should be involved in determining refugee status."

From these two interviews, the immigration authorities focused on the presence of asylum seekers who enter using immigration documents. Asylum seekers who use immigration documents to enter Indonesia face two potential challenges, as explained above. However, as a country that upholds human rights, the acceptance of asylum seekers cannot be restricted. What the UNHCR should do is involve Indonesia in determining the status, allowing it to gather information and provide considerations. As explained in the interview above, as outlined in the principle of cooperation in Presidential Regulation Number 125 of 2016, good cooperation is characterized by involvement in the process, but not necessarily in the determination. Indonesia's involvement is essential to provide input and information that should be considered to clarify the objective element of "reasonable fear" as expressed by the asylum seeker and their immigration documents. Indonesia, in collaboration with the immigration attaché who granted the visa or examined the foreigner's documents, has the potential to assist in providing input at the RSD stage to clarify the objective element of "reasonable fear." The involvement of authorities or governments is actually outlined in the UNHCR Refugee Status Guidelines:

"Regarding the objectivity of a claim, it is necessary to evaluate the claims made by the applicant. Authorities called upon to determine refugee status are not required to provide an assessment of the conditions in the applicant's country of origin. However, the applicant's claims cannot be considered abstract and must be viewed in the context of relevant background circumstances. Knowledge of conditions in the applicant's country of origin, even if not a primary objective, is an important element in assessing the applicant's credibility. In general, an applicant's fears should be considered well-founded if He can establish, to a reasonable extent, that his continued stay in his country of origin has become intolerable for him for the reasons mentioned in the definition, or would be unbearable for the same reasons if he returned there.”

However, in reality, immigration authorities, based on the interviews, were not only not involved and consulted in the status determination process, especially for asylum seekers entering using travel documents, but further reports related to the RSD process for asylum seekers using passports were not reported by the UNHCR.

3.1.4. Obstacles to Transparency in the Refugee Status Determination (RFD) Process by UNHCR in Indonesia: Persecution Criteria

Once a reasonable risk is established, the next stage is an assessment to clarify persecution or human rights violations. Further elaboration is needed to define persecution, which is assessed based on the level of human rights violations (Moran, 2021). The nature of persecution can vary: physical, psychological, or economic. Regardless of the nature of the persecution, it is the specific degree, namely the quantitative and qualitative level of human rights violations, that determines when the threshold for persecution is reached (Ilcan, 2021). According to IS, a Case Worker at UNHCR, a strong indicator of persecution is the asylum seeker's country of origin, as in the following interview:

"So, for refugee resettlement, we have a new strategy. We prioritize refugees who have a 99% chance of being resettled in a third country. This applies only to countries where we have a 99% chance of being granted refugee status. For example, countries like Afghanistan, Somalia, and Iraq, or the Rohingya, where we clearly understand the situation in those countries. For new arrivals, we can't immediately grant them refugee resettlement; we register them as asylum seekers until they have a chance of being resettled in a third country. We prioritize those with a high probability of being rejected, for example, from Iran; 50% of people from Sri Lanka are rejected in their home country, or even more than 50%. We prioritize these people because we want to quickly determine their refugee status. If they are not refugees, we reject them, and they can return to their home country." The UNHCR guidelines also explain that in determining human rights violations, the coexistence within a country of two or more national groups (ethnic, linguistic) can create situations of conflict and persecution or the risk of persecution. It may not always be easy to distinguish between persecution for reasons of nationality and persecution for reasons of political opinion when conflicts between national groups are combined with political movements, particularly where political movements are identified with a particular "nationality."

IS, when asked about the timeframe for granting refugee status, explained that:

"For cases that are easily analyzed, the process should take no more than six months, and in some cases, it can even be completed within a day. It depends on the individual situation. For cases requiring rapid intervention, it can even be finalized within a day or two. For example, in detention cases, we have several cases detained in the Soekarno-Hatta International Airport because immigration officials would not allow them to enter Indonesia. These individuals need protection; if they are not protected, they will be deported. We will conduct an expedited review, and the cases can be completed within a day or two."

However, there are still asylum seekers whose status should have been changed to refugee for more than six months, but many remain asylum seekers. Meanwhile, consideration of the country of origin, which is a priority country for immediate RSD (Research and Development), which is a key indicator of human rights violations due to the situation in that country, is also not yet apparent in the following data:

Table 5: Search List Comparison Asylum Based on Citizenship and Year of Registration of the Seeker Asylum

Caption: LP 2020: Report UNHCR Annual Report 2020

Caption: LP 2021: Report UNHCR Annual Report 2021

Source : Management of Persons Registered with UNHCR in 2020 and 2021

The data in the table above shows that there are still a large number of asylum seekers from countries prioritized according to the interview results. This data demonstrates an inconsistency between the interview results and the number of asylum seekers from specific countries included in the RSD implementation priorities. When asked for confirmation from DA, a UNHCR Case Worker, regarding the above data, she was unable to provide an explanation because the data was not provided directly by her.

This indicates that the data held by UNHCR and provided to the Indonesian Government has not been used as a reference by UNHCR itself, particularly regarding the disparities in existing UNHCR refugees used as a reference for implementation priorities. Based on this data, the internal policy for prioritizing specific countries with a chance of approval still leaves several on the list, as shown in Table 5, whose registration period exceeds five years. This number cannot be considered small, as the average number of asylum seekers from the four priority countries in the 2021 report was over 1,000. If UNHCR were aware of this number, the case worker would certainly confirm and provide further information. Countries with a high chance of being granted a refugee card, as seen in the interviews above, account for one-third of the total number of asylum seekers. Therefore, if the UNHCR is consistent with its policy of prioritizing countries with conflict backgrounds that meet the standards for persecution, there is a potential reduction in the number of asylum seekers by one-third of the total number of asylum seekers, as depicted in Table 3 above. According to the author, this could be due to the small number of case workers, which makes it impossible to analyze the available data, and instead focuses on implementing the administration of determining refugee status and other administrative matters.

3.2. Mitigation of Refugee Card Issues in Indonesia

3.2.1. UNHCR Internal Mitigation Steps to Resolve Refugee Card Issues

In general, UNHCR should encourage the provision of knowledge and information about the Refugee Card Process (RSD). Several interviews have revealed that asylum seekers feel they don't understand the standards for the RSD process implemented by UNHCR. This is as explained by Ali Reza:

"We don't know, it depends on the office. They don't want to explain the rules. It depends on the problem, the interview, the person's story, and the issues in their country. If they have a major problem, they will quickly get this card. It depends on the person, the country, and the problem."

Some individuals even advise asylum seekers or refugees not to share their problems with others. As N explained, "The problem is, we don't know each person's problems, because at UNHCR, we've been warned not to share your problems with others." This, of course, allows other parties to determine the extent of the detailed processes implemented and the accountability of UNHCR's RSD activities, as accountability and support for human rights must also be demonstrated by international organizations, in this case UNHCR. Encouraging asylum seekers and refugees not to provide information to external parties will certainly hinder external review of UNHCR's RSD implementation.

In addition to the information accountability measures that UNHCR can undertake to mitigate the disparity in the timing of refugee card issuance, an initial mitigation step that can be taken internally by UNHCR is to prioritize the data of asylum seekers whose asylum status has been extended for a long time, as shown in Table 4 and in the explanation above. Providing certainty about an asylum seeker's status is crucial, as explained previously.

An internal mitigation step that can be taken is prioritizing asylum seekers who hold immigration travel documents. If the outcome is a refusal of refugee status or FRP, the likelihood of immigration administrative action is greater due to the possession of valid travel documents. An example of an asylum seeker/refugee holding immigration documents, like N, who entered Indonesia using a passport:

"I arrived in Indonesia by plane, then went to UNHCR, and then I was given a paper. Initially, we went to Batam, then to Jakarta, then to Semarang, and then to Semarang, and then here. In Semarang, we got our UNHCR card, and it took about three or four years to get it."

An interview with IS explained:

"So, actually, to determine refugee status, there's a separate unit called Refugee Status Determination (RSD). So far, we have three case workers: two men and one woman. We usually need women for cases involving female asylum seekers, perhaps survivors of gender-based sexual violence, who are more comfortable being interviewed by women. So, we have three case workers: one review officer and one backup review officer. The review officers at the first level and the appeals level are also different because we want the reviewers to be different people. For example, if the first appeal is rejected, the subsequent appeal will be handled by a different person, which can lead to a lack of objectivity. At the appeals level, refugees must still be given the opportunity to explain themselves objectively."

From the results of the interview, the workload of the UNHCR to resolve each case is not balanced with the number of employees at UNHCR, as seen from table 4 that the total backlog of asylum seekers who have not become refugees is 3309 (three thousand three hundred and nine) asylum seekers whose status must be clarified, while the total number of officers owned is only around 5 (five) people, so for one UNHCR officer there are approximately 661 (six hundred and sixty-one) asylum seekers who must be reviewed for 2021. This burden is of course only a part of the total burden that UNHCR has. In an interview with IS, when asked about the workload, UNHCR staff explained:

"It actually depends on priorities. In a month or a week, a caseworker typically interviews eight to ten people, but sometimes it can be more or less, depending on the situation. Furthermore, during the COVID-19 pandemic, physical meetings are limited, so everything is done online. Sometimes online interviews encounter challenges, such as poor connectivity, which requires phone calls. Even when phone calls are interrupted, the phone line can be disrupted. Perhaps the refugee lives in the Bogor area, where the signal is poor, so that also affects the situation."

Table 6: Departure List Based on UNHCR Report 2021​

Source: Management of Persons Registered with UNHCR in 2021

If we look back at Table 4, the number of changes in asylum seeker data from 2020 to 2021, apart from the number of new data in 2021, is 251 (two hundred and fifty-one) reduced asylum seekers. If there is a voluntary return, there will certainly be asylum seeker data in the departure data. The 2020 UNHCR Registered Persons Report is dated November 30, 2021, and the date of the UNHCR Registered Persons Report is dated May 2021, so there is a 6 (six) month span between the two reports. If the 251 (two hundred and fifty-one) changes in asylum seeker data above are divided by 6 (six) months, it means that there are an average of 41 (forty-one) reductions in asylum seeker data each month, which is an indication of the workload of each UNHCR staff member, so that one UNHCR staff member completes an average of approximately 8 (eight) RSD cases per person. Consequently, the implementation carried out by UNHCR staff in a year only covers 7.6% of the total workload that UNHCR is expected to complete. This very low RSD completion rate is undoubtedly due to an imbalance in workload and staffing. This is also one mitigation measure that UNHCR can implement to address the disparity in refugee card issuance by the agency.

3.2.2. UNHCR's External Mitigation Measures to Resolve Refugee Card Issues

The author refers to external mitigation in the form of cooperation between UNHCR and external parties or the establishment of regulations between the Indonesian government and UNHCR to address the disparity in the granting of refugee cards by UNHCR. As discussed previously, the first step UNHCR must take is to provide Indonesia with the opportunity to access UNHCR data as quickly as possible for immigration oversight. As explained in the previous interview and discussion, the oversight obstacle is the delay in information regarding the status determination of foreigners granted asylum seeker or refugee status. Article 4(5) of the 2019 Memorandum of Understanding between the Government of Indonesia and UNHCR (hereinafter referred to as the 2019 UNHCR MRP) stipulates that UNHCR must report to the Indonesian government regarding the determination of asylum seekers or refugees. One month is considered a relatively slow timeframe for immigration authorities to monitor asylum seekers and refugees. The 2019 UNHCR MRP also does not stipulate a reporting communication channel to immigration authorities to expedite the monitoring process. Indeed, Article 7, point 1, letter b, explains that the use of shared personal data is, among other things, for the purpose of carrying out official national immigration activities, specifically immigration supervision for asylum seekers and refugees.

Article 2 of the 2019 UNHCR MRP mandates UNHCR to take appropriate and necessary steps to convey data or information and coordinate the results of initial verification registration with the government. Article 2 does not specify with whom this data or information should be coordinated. However, previous discussions have made it clear that the party most interested in accessing data as quickly as possible is immigration authorities for immigration oversight purposes. Therefore, improvements to the 2019 UNHCR MRP to clarify the data sharing model and expedite the data sharing time of UNHCR's RSD process for immigration oversight are among the external mitigation plans needed to address the disparity in refugee card issuance by UNHCR.

Furthermore, based on the previous analysis, the issue of Indonesian involvement in the refugee status determination process, in terms of providing input to refugees, could actually be addressed if the UNHCR followed the instructions in Article 4, number 3 of the UNHCR's 2019 MRP, which explains that the UNHCR must make appropriate arrangements to ensure that all refugees and asylum seekers are informed prior to the registration process and that all of the above information will be shared with the government. The arrangements made by the UNHCR in the data coordination process prior to the determination should also include obtaining information from the Indonesian government, particularly Immigration, because the results of the previous discussion showed that data from Immigration is data that can help strengthen the consideration of "reasonable fear" from the perspective of objectivity in statements made by foreigners who are prospective asylum seeker or refugee card recipients. The lack of involvement of immigration authorities, either in hearings, as stated by RS, Head of Registration, Administration, and Reporting at the Kalideres Immigration Detention Center:

"Back when refugees were still housed at the Immigration Detention Center, UNHCR came to the detention center to conduct interviews, but we couldn't participate in the interview process to find out what was being discussed, and we weren't informed. When we asked, they said no, so we didn't know the procedures."

As mentioned in the UNHCR's RSD Guidelines, input from government authorities is crucial. Therefore, one mitigation strategy to address the disparity in the timing of refugee cards issued by UNHCR is to regulate the involvement of Indonesian authorities, specifically Immigration, to actively provide input regarding the profiles of prospective UNHCR card recipients.

Another important point to note is what DA, a UNHCR case worker, explained:

"In Indonesia, Presidential Regulation No. 125 of 2016 does not differentiate between asylum seekers and refugees. The definition only applies to international refugees, so determining refugee status is not a priority. Prior to the Presidential Regulation, only people with refugee status cards were exempt from detention. Previously, those with non-refugee status still risked detention. However, following the Presidential Regulation and the new definition, determining refugee status does not determine whether someone will be detained or not, so determining refugee status is not prioritized for certain citizens. Therefore, determining refugee status is prioritized when certain conditions require refugee status. One example is when a person is prioritized for resettlement, which means their refugee status is prioritized."

It's important to emphasize that UNHCR recognizes several shortcomings in Presidential Regulation Number 125 of 2016. These shortcomings relate to Indonesia's understanding of refugee status determination, as explained above, and could also provide scope for regulation of issues not covered by the 2019 UNHCR MRP, as discussed previously. Furthermore, amendments to the 2019 MRP could clarify these issues in the form of further regulations in future amendments to Presidential Regulation Number 125 of 2016, in order to mitigate the disparity in the timing of refugee card issuance by UNHCR.

According to an immigration official at the Directorate General of Immigration, several policies are currently planned:

"Regarding the regulation, we are currently drafting a Ministerial Regulation on the management of foreigners as refugees and asylum seekers, which we have benchmarked against Thailand. We will create regulations on how to limit refugees, and UNHCR must involve Immigration."

The benchmarking conducted with Thailand is a consideration. Thailand has a long history of refugee management. The border between Thailand and Myanmar has been a focal point for interaction between community groups, non-profit organizations (NGOs), the Thai government, and international organizations such as the UNHCR.

The Provincial Admission Boards (PABs) have been in place since 1999, and are responsible for determining the status of asylum seekers. Their membership consists of the governor of each province, the Ministry of State Security, the Head of State Communications, the Military Commander, representatives from the Prime Minister's Office, immigration representatives, and the UNHCR. From 1999 to 2001, approximately 100,000 registrations were completed. This was halted in 2001 by the country's three-year "no new arrivals" policy. However, the number of refugees continued to grow, reaching 136,053 in 2012, with 78% of the total resettled in the United States. However, the Thai government realized that the high number of resettlement efforts in destination countries was actually attracting new asylum seekers to Thailand. The Thai government's concern over the high number of refugees and asylum seekers remaining at the border compared to those resettled in destination countries led the Thai government to suspend registration activities carried out by the UNHCR and the government.

In the 1990s, Thai policy was built on the principle of safeguarding Thai sovereignty and the identity of the Thai people. Consequently, many national security-based policies were implemented in Thailand. Following the attack on the Burmese Embassy in Bangkok and the seizure of a local hospital by armed Burmese foreigners, the Thai government designated special areas for refugees and asylum seekers along the border. Any foreigner remaining outside these designated areas would be considered an illegal immigrant and face deportation.

Furthermore, it is important to note that Thailand has conducted an assessment process for new asylum seekers and refugees themselves. The UNHCR then described this as illegal and explained that only assessments conducted by the UNHCR and the government are considered legitimate, allowing it to monitor changes in the asylum seeker and refugee population. The UNHCR, along with the government, routinely conducts field checks. Numerous military juntas, volunteer corps, and district chiefs assist in monitoring and inspections, resulting in many deportation.

From the comparison with Thailand, the key factor in strengthening immigration control for refugees and asylum seekers lies in the historical involvement of NGOs, the UNHCR, and the government in the refugee status determination process, as well as government policies focused on national sovereignty and security, which were directly implemented through clear policies on designated refugee locations and clear legal consequences, including deportation, for any foreigner outside the designated locations. Strict control of changes in the number of asylum seekers and refugees by the UNHCR, the government, and community groups also significantly influences foreigner control policies in Thailand.

From the discussion above, a mitigation plan scheme can be created as in the following table:

Table 7: Comparison Scheme of Previous Regulations

and Reformulation of Mitigation Handling of Refugee Card Issues in Indonesia

Source: Author's data processing results

4. Conclusion

From the results of the discussion above, several things can be concluded as follows. The disparity in the process of granting refugee cards by UNHCR is caused by the lack of transparency and involvement of other parties, as well as the lack of accountability and clarity in the coordination of data on the process of determining refugee status by UNHCR with Immigration. Mitigation steps that must be taken by UNHCR and Immigration to reduce this disparity as a form of legal certainty are by compiling and improving the Memorandum of Understanding between the Government of Indonesia and UNHCR in 2019 to support the ease of rapid information exchange and a clear coordination model between UNHCR and Immigration, as well as changes to Presidential Regulation Number 125 of 2016 concerning the Handling of Refugees from Outside to accommodate the introduction of refugee status determination and accommodate more detailed coordination functions in determining refugee status and faster data exchange in the context of immigration supervision.

Author Contributions: All authors contributed to this research.

Funding: Not applicable.

Conflict of Interest: The authors declare no conflict of interest.

Informed Consent Statement/Ethics Approval: Not applicable.

Acknowledgments: The authors would like to thank the Politeknik Pengayoman Indonesia, Directorate General of Immigration of the Republic of Indonesia, and several other agencies. We realize that this research still has shortcomings and limitations both in terms of data and analysis. We expect input from all parties to improve this research.

Declaration of Generative AI and AI-assisted Technologies: This study has not used any generative AI tools or technologies in the preparation of this manuscript.