Castan Centre for Human Rights Law
CASTAN CENTRE FOR HUMAN RIGHTS LAW
Re Inquiry into the Migration Legislation Amendment Bill (No 6) 2001
Before I comment on specific provisions in the above legislation, I would
like to make some general comments.
A number of these provisions are intended to alter the definition of
a refugee in Art 1A of the Refugees Convention as set out below. This
raises several issues. First, this type of action is not something which
has been found necessary other jurisdictions. Given that Australia has
a very small refugee 'problem' in comparative terms this is a questionable
strategy. Secondly, it is a basic principle that international instruments
should be interpreted consistently both nationally and internationally.
These amendments will potentially lead to Australian jurisprudence being
out of line with international interpretation of the Convention. Currently
the Australian courts are interpreting the Convention in a moderate, not
generous way. These amendments are simply unnecessary. They will add another
layer of complexity to interpretation of Art 1A. Thirdly, one can query
whether many of these provisions comply with the principle of 'good faith'
interpretation of international obligations as required by Art 31 of the
Vienna Convention.
A final general comment is that the High Court has emphasised on many
occasions that the Refugees Convention cannot be interpreted too legalistically
- that the definition in Art 1A cannot be broken up into strict components.
Yet this is the effect of most of these provisions.
In this submission I concentrate largely upon the refugee definition,
as that is where I have the greatest expertise from my extensive reading
of the international jurisprudence.
Section 91R Persecution
The Refugees Convention Art 1A defines a refugee as:
... any 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 unwilling to avail himself of the protection of that
country; ... .
Subsection (1)(a) attempts to redefine the causal link requirement
in the Refugees Convention. I argue that this is an unnecessary amendment
which has the potential to distract decision-makers from the focus of
the Convention.
Subsection (1)(b) and (c) define persecution by reference to 'serious
harm' and 'systematic and discriminatory conduct'. For the reasons I
give below my view is that such amendment would seriously narrow the
way that Art 1A has been interpreted.
As 'persecution' is logically prior to the reasons for such persecution,
I deal with the meaning of that concept first.
What is the meaning of persecution?
The history of the Refugees Convention illustrates that persecution
was enshrined in the 1951 Convention as the hallmark of the individualised
refugee test which emerged with that document. Previous versions of
the Convention show that in evolution the concern was with protection
of specific groups for unspecified reasons. The 1951 Convention was
intended to deal with people fleeing both actual physical persecution
and those fleeing for ideological reasons. The meaning of persecution
was deliberately left undefined to enable the concept to be applied
to new situations.
S91R(2) 'serious harm'
The jurisprudence which has developed under the Refugees Convention
demonstrates that persecution takes its meaning from the human rights
context, which includes the protection of human dignity. The Refugees
Convention is one of a series of human rights instruments to which Australia
is a party. The core meaning of persecution includes deprivation of
life or physical freedom (which is encompassed in the proposed definition
of 'serious harm'). But it has also been read to include 'severe pain
or suffering whether physical or mental, intentionally inflicted'. This
is consistent with the meaning of torture in the Convention Against
Torture 1984.
This proposal is flawed for two reasons. First it narrows the scope
of the Refugees Convention by defining persecution by reference to physical
harm alone. Secondly it is inconsistent with jurisprudence which has
developed both in Australia and in international jurisdictions in relation
to the Convention and other human rights instruments.
S91R(1)(c) 'systematic and discriminatory conduct'
In Chan Yee Kin v MIEA (1) McHugh J defined persecution as involving
selective harassment or systemic conduct directed at an individual or
a group. But he also said that a single act of persecution may suffice.
He related the meaning of persecution to basic human rights as did other
justices of the High Court. In a number of cases the Federal Court read
McHugh J's statement as containing an inflexible formula for persecution.
Recently in Minister for Immigration v Ibrahim, (2) the High Court as
a whole warned against this trend as detracting from the meaning of
the refugee definition in the Convention. The High Court in recent decisions
has warned about the dangers of being over prescriptive in defining
what amounts to persecution.
This provision refers only to 'systematic ... conduct'. It thus takes
an incomplete version of McHugh J's statement in Chan Yee Kin v MIEA
as its basis. It suggests incorrectly that persecution must be part
of a system. It thus narrows and constrains the meaning of persecution
in precisely the way that the High Court has said is wrong. This is
inconsistent with a 'good faith' interpretation of the Refugees Convention.
It is also inconsistent with international jurisprudence.
In Chen Shi Hai (3) and other cases the High Court has pointed to the
need to prove discriminatory conduct to establish 'persecution'. It
also warned as stated below of the danger of confusing that requirement
with 'motivation'. It stressed the need to decide cases on their own
facts. The reference to 'discriminatory conduct' in proposed s91R(1)(c)
is thus an unnecessary embellishment to the case law.
S91R (1)(a) the 'essential and significant reason'
It is well recognised that the need to prove persecution 'for reasons
of' Convention grounds under Art1A requires a causal link between the
persecution and the grounds.
In a number of Federal Court cases this need for a causal link has
been read as requiring a positive discriminatory motive for the persecution,
thus narrowing the meaning of persecution. Recently the High Court has
disapproved this trend.
In Chen Shi Hai the High Court accepted a statement of French J when
he said that:
Motivation connecting persecution to the relevant attribute is sufficient.
Persecution may be carried out coolly, efficiently and with no element
of personal animus directed at its objects. There are too many examples
of inhuman indifference of which governments are sometimes capable ...
The attribution of subjectively flavoured states ....to governments
and institutions risks a fictitious personification of the abstract
and the impersonal. (4)
The courts have correctly recognised that there are often multiple
motives for persecution by governments or their agents. The link or
nexus between the persecution and the grounds can be either or both
external and internal. For example, there is an internal link or reason
when it is the attitude of the asylum seeker that is relevant. This
is the case where refugee status is claimed on the basis of political
opinions or religious beliefs which are internal or personal. On the
other hand the link is external when the persecutor puts forward the
reasons, such as the person's Jewishness, or sexuality or imputed political
opinion. In many cases the motivation is multiple, because it has both
internal and external links. It is essential that both points of view
should be examined to determine whether there is persecution for a Convention
reason.
This proposed amendment encourages decision-makers to focus upon the
motivation of the persecutor contrary to established jurisprudence.
S91R (3) 'sur place' claims
This provision imposes an additional burden on an applicant to establish
not only a well-founded fear of being persecuted for Convention reasons,
but also proving that conduct in Australia was bona fide. This runs
contrary to the established jurisprudence that the refugee test has
both an objective and subjective element. It improperly constrains the
application of the 'real chance' of persecution test which requires
a weighting of evidence and the prediction of future probabilities.
Section 91S Membership of a particular social group
This provision requires the meaning of 'membership of a particular
social group' to be read down by the grounds stated in Art1A. It has
the effect of making this ground otiose. This appears to be a reaction
to recent judicial decisions which have applied the Convention to new
situations such as to persons who fear persecution for reasons of their
sexuality or gender, or who are the victims of civil disturbances. The
incorrect assumption behind this proposal is that the application of
the Refugees Convention is frozen to its 1951 context. Nothing could
be farther from the intention of the drafters of the Convention.
This is contrary to established international jurisprudence on the
meaning of this ground. Whilst there is considerable controversy about
the appropriate test for this provision in the Refugees Convention,
the courts in this and other jurisdictions have opted for a conservative
approach. This is to refer to the "immutable characteristics"
of the group.
It is generally agreed that the test for "membership of a particular
social group" cannot be defined exhaustively and that it must be
determined on a case by case basis. This proposal endorses an inflexible
and strict approach to this ground.
Section 91T Non-political crime
Section 91U Particularly serious crime
The concerns with these provisions is that they are copying the trend
of some overseas jurisdictions to 'criminalise' the refugee jurisdiction.
Such measures are of considerable concern to the UNHCR and other refugee
advocate bodies as they seriously compromise the principle of non-refoulement.
Section 91V Verification of information
Section 91W Documentary evidence
The determination of refugee status depends largely upon credibility.
It is thus essential that applicants be accorded the fullest opportunity
to present their cases to satisfy natural justice. The current provisions
of the Migration Act already restrict the rights of asylum seekers to
a fair hearing. The UNHCR Handbook requires that applicant's be accorded
the benefit of the doubt in presenting their claims. In particular,
deference should be given to the person's cultural and psychological
background in assessing claims.
These provisions reverse those principles.
There are many valid reasons for asylum seekers being unable to produce
documentary evidence, or for giving different versions of their accounts
of events. These provisions are of the most serious concern.
In summary, my view is that none of these amendments is necessary or desirable.
I would be happy to elaborate on my submission if requested.
Dr Susan Kneebone
Castan Centre for Human Rights Law
Faculty of Law
Monash University
Email: susan.kneebone@law.monash.edu.au
1 (1989) 169 CLR 379.
2 (2001) 175 ALR 585.
3 (2000) CLR 293.
4 At p304.
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