US embassy cable - 04KATHMANDU1606

C O N F I D E N T I A L SECTION 01 OF 02 KATHMANDU 001606 
 
SIPDIS 
 
DEPT FOR SA/INS, DRL, EAP/CM, PRM/ANE 
LONDON FOR POL/GURNEY 
NSC FOR GREEN/DORMANDY 
GENEVA FOR PLYNCH 
NEW DELHI FOR SNAIR 
 
E.O. 12958: DECL: 08/12/2014 
TAGS: PREF, PHUM, PGOV, NP, Tibetan Refugees 
SUBJECT: NEPAL: COURT CASE MIGHT HALT TRANSIT OF TIBETANS 
 
 
Classified By: Ambassador James F. Moriarty; Reasons 1.4 (b/d). 
 
1. (SBU) SUMMARY:  Because of a case filed in the Kathmandu 
District Court accusing a police constable who escorted two 
Tibetan refugees to Kathmandu of trafficking and taking 
bribes, rumors abound that Nepal's Immigration Department has 
halted any further transit of Tibetan refugees to India for 
now.  While the Tibetan Refugee Resettlement Center in 
Kathmandu should be able to handle the backup for some time 
should the rumors prove true, a long delay in transit could 
present real problems.  Moreover, should the court decision 
determine that the constable, who escorted two refugees to 
Kathmandu four years ago, was acting without any underlying 
legal authority, the case could call into question Nepal's 
unwritten procedures for handling refugees.  END SUMMARY. 
 
2. (C) On August 10, UNHCR informed PolOff that there was a 
court case in "one of the district courts" that appeared to 
have the potential to cause "some difficulties" for the 
transit of Tibetan refugees through Nepal.  On August 12, a 
UNHCR staff member visited the Kathmandu District Court and 
was allowed to see the case file in question.  According to 
the UNHCR staffer, four years ago two Tibetans asylum seekers 
were arrested by Nepali police near the Tibet border.  A 
police constable (Raju Shrestha) escorted the Tibetans to the 
Department of Immigration in Kathmandu, who in turn handed 
them over to UNHCR at the Tibetan Refugee Resttlement Center 
(TRRC), in concert with the "Gentleman's Agreement and 
standard practice at the time.  (NOTE:  The two refugees in 
question have long since transited to India.  END NOTE.) 
 
3. (C)  A second police constable who was stationed at the 
same border post subsequently filed a complaint with the 
Kathmandu District Court against Shrestha, charging that he 
was involved in trafficking and taking of bribes.  The court 
has ordered the Nepali Department of Immigration and the 
National Unit for Coordination of Refugee Affairs (NUCRA) -- 
both located under the Home Ministry -- to inform the court 
of any international agreements or national laws that 
determine Nepal's handling of asylum seekers.  (NOTE:  Nepal, 
like other countries in South Asia, is not a signatory to the 
United Nations Convention on Refugees.  The "Gentleman's 
Agreement" on the handling of Tibetan refugees, established 
in 1990 between the GON and UNHCR, has never been formalized, 
although it was put into writing last year in a letter from 
Nepal's Foreign Secretary to Senator Feinstein. END NOTE.) 
 
4. (C) UNHCR became aware of the case when enquiring why the 
Department of Immigration had been unwilling to provide an 
immigration officer to accompany a busload of Tibetan 
refugees for the trip to the Indian border since earlier this 
month.  According to UNHCR, the Director General of 
Immigration had decided to "wait a few days" until the court 
case was resolved before allowing any further transits to 
India.  At present there are about 200 refugees who have 
entry permits from the Government of India and are prepared 
to make the trip. 
 
5. (C) PolOff spoke with Ministry of Home Joint Secretary and 
Director of NUCRA Narayan Gopal Malego on August 12.  Malego 
stated that the DG of Immigration was attempting to put 
together a response to the court, and would consult the 
Ministry of Home if he needed assistance.  Malego was 
unwilling to comment on the DG's decision to halt the transit 
of additional refugees, except to say that until the court 
decision was made, the legal basis for handling of refugees 
was in question.  "We may have to formalize the process," he 
noted. 
 
6. (C) An extremely agitated Director General of Immigration, 
Subarna Lal Shrestha, told PolOff on August 13 that he had 
not made any decision to halt the transit to India, nor did 
he know of any such decision.  However, when repeatedly asked 
if that meant that Tibetans would still be allowed to transit 
from the TRRC to India with an immigration escort, Shrestha 
dodged, instead trying to ascertain where PolOff had heard 
that Shrestha had decided to halt the transit. 
 
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COMMENT 
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7. (C) It is not uncommon that one GON hand does not know 
what the other is doing.  The next departure of a bus for the 
Indian border will be the only reliable sign that the system 
is back on track and functioning.  Meanwhile, the TRRC can 
handle the backlog for a short time, should the DG in fact 
not allow ongoing transit.  However, court cases in Nepal in 
some circumstances go on for decades. 
 
8. (C)  The court case itself presents a possible challenge 
to the continued flow of Tibetan refugees, although it could 
also result in a positive outcome.  Should the court 
determine that Constable Shrestha's escort of the refugees 
constitutes "smuggling" or "trafficking" because of the lack 
of underlying laws for the special handling of refugees, the 
decision could set a precedent calling into question Nepal's 
handling of any and all refugees (Tibetans, Bhutanese, etc.). 
 Should such an eventuality occur, the GON would have no 
ability to treat refugees any different from illegal 
immigrants.  That could, however, as Malego indicated, force 
a more formalized set of rules to replace the "Gentleman's 
Agreement" for treatment of Tibetan refugees, something that 
Tibetan special interest groups, UNHCR and many governments 
have long sought.  We will stay in touch on this issue with 
UNHCR, the Tibetan community, and other concerned Embassies 
to weigh in as necessary with the GON. 
MORIARTY