Warra Warra: Refugees and Protection Obligations in Relaxed and Comfortable Australia

See Hughes Robert , The Fatal Shore, Vintage, 1998, p.84.

Commenced 16 December 1999. The BPLAA also made amendments to the Fisheries Management Act 1991, and the Customs Act 1901.

See House Hansard: Member for Sturt, Chris Pyne, 21 October 1999, BPLA Bill 1999, Second Reading Speech; Minister for Immigration and Multicultural Affairs, Philip Ruddock, 22 September 1999, BPLA Bill 1999, Second Reading Speech.

Migration Legislation Amendment Acts (No 1) and (No 2) 1999.

See Articles 1A(2), 1(C), 1(D) and 1(E) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, as amended by the Protocol relating to the Status of Refugees, New York, 31 January 1967, hereafter ‘the Refugees Convention’. See also Hathaway James , The Law of Refugee Status, Butterworths, Canada, 1991, pp.57, 205.

A refugee is a person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’; Article 1A, Refugees Convention.

Section 36(2) Migration Act 1958. Further references to sections are to the Migration Act 1958, unless otherwise indicated.

See Hathaway , above ref 6, p.47, Goodwin-Gill Guy , The Refugee in International Law, Clarendon Press, 1998, pp.333–44.

The Refugee Review Tribunal has referred a case to the Administrative Appeals Tribunal (AAT) by way of test case. The decision of the AAT is, at the time of writing, reserved after a hearing in Darwin. The author is the solicitor in that case. It is estimated that there are 1600 outstanding applications for protection visas involving people from East Timor, some of which are over 10 years old. The Minister for Immigration and Multicultural Affairs has submitted that the applicant should be returned to East Timor, or alternatively, be sent to Portugal.

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685.

Article 33 of the Convention provides that ‘No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.

See von Doussa J at 693.30 and 702.20

Above ref 6.

Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619.

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (25 September 1998) [1998] FCA 1213.

Minister for Immigration and Multicultural Affairs v Kabail (31 March 1999) [1999] FCA 344.

Kabail, above, at 506.

Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 167 ALR 175.

(1999) 167 ALR at 184–5 [42], citing with approval the comments of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 at [26].

(1999) 167 ALR at 185 [43].

Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration and Multicultural Affairs, (2000) 170 ALR 553, at 564.

Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695.

Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681.

The approach is also consistent with cases dealing with Article 1E of the Convention; see for example Barzideh v Minister for Immigration and Ethnic Affairs (1996) 139 ALR 710. For a competing view, see Piotrowicz Ryszard , ‘Kon Tji Lay v Minister for Immigration & Ethnic Affairs: The Function and Meaning of Effective Nationality in the Assessment of Applications for Asylum’, International Journal of Refugee Law, 1999, Vol 11, p.544.

See for example McDonald Colin , ‘The coming of the Boat People to Australia, Brickbats and the non material rewards of Pro Bono legal work’, paper delivered to the Commonwealth Attorney General's Pro Bono Law Conference, Canberra, 5 August 2000.

RRT reference N00/31751, 30 June 2000.

See Jong, above, and Lay, above, and also the acknowledgement of the relevance of the principles of international law in Thiyagarajah, above at 693.34, 702.20.

Acting President of the Refuge Review Tribunal, Dr Peter Nygh notes: ‘In a world were empires have dissolved, countries have been partitioned and which has seen massive movements of population, dual nationality is very common. However, many persons, including many Australians, may not be aware that they possess more than one nationality’; Nygh Peter , Role of the Refugee Tribunal and Recent Developments in Refugee Law, paper delivered to the Migration Law Conference, Law Society of South Australia, 16–18 June 2000.

Hathaway considers similar developments in other states, and criticises this approach as being inconsistent with the spirit of the Convention'. He notes that they reflect a weakening commitment to the right of the refugee to decide the most effective means of securing their safety, and infringe the principle of burden sharing; above, ref 6, p.47.

Submission to the office of the United Nations High Commission for Refugees, Regarding the adoption of safe third country' legislation in Australia, by the Jesuit Refugee Service, prepared by Penelope Mathew, p.6.

Report of the 31st Session, 1980, UN doc. A/AC.06/588, para.48(2), at para (h)(iii).

Report of the 31st Session, above, at para (h)(iv).

See further the submissions to the UNHCR by the Jesuit Refugee Service, above, ref 30, pp.5–8.

Submission to the office of the UNHCR, above, ref 30, p.8.

See Migration Regulations Schedule 2, reg 785. A permanent visa can be granted at an earlier stage at the discretion of the Minister; see Schedule 2, reg 866.228(b)

Such treatment may also breach our obligation under Article 7 of the International Covenant on Civil and Political Rights to not subject persons to ‘cruel, inhuman or degrading treatment’; see Taylor Savitri , ‘Understanding the Changes to Australia's Off-shore Humanitarian Resettlement Program’, (2000) April/May Migration Action 4 at 12.

For updated figures, see <http://www.immi.gov.au/facts/81boats.htm>.