Protection elsewhere/nowhere

International Journal of Refugee Law

Volumn 18, Issue 2, 2006, Pages 283-312

  Taylor, Savitri ^a  

^a LA TROBE UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; IMMIGRATION POLICY; SOCIAL SECURITY; STATE ROLE; WELFARE PROVISION;

AUSTRALASIA; AUSTRALIA;

EID: 33745951857     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eel007     Document Type: Article

References (150)

1. [2005] HCA 6 (2 Mar. 2005).
2. 11 accessed on LEGEND.com database.
3. 12 accessed on LEGEND.com database.
4. As at 1 Mar. 2006.
5. Jul. 1951, 189 UNTS 150 (entered into force for Australia, and generally, on 22 Apr. 1954).
6. Jan. 1967, 606 UNTS 267 (entered into force generally on 4 Oct. 1967, and for Australia on 13 Dec. 1973).
7. Refugees Convention article 1A(1) defines an additional category of refugee, but it is a category which is of little relevance in the present day.
8. Despite its apparently restrictive wording, article 33(1) also prevents a refugee from being sent to a place where he or she would be exposed to a form of persecution other than deprivation of life or freedom. In other words, article 33(1) must be read in light of the definition of 'refugee'. This position is accepted in Australian practice.
9. See, e.g., A. Achermann and M. Gattiker, 'Safe Third Country: European Developments', 7 IJRL 19, 26 (1995)
10. United Kingdom, 'Sending Asylum Seekers to Safe Third Countries', 7 IJRL 119, 121 (1995).
11. Office of the United Nations High Commissioner for Human Rights, Status of Ratification of the Convention Against Torture (as at 26 Jan. 2006) , at 1 Apr. 2006.
12. 10 Dec. 1984, 1465 UNTS 85 (entered into force generally on 26 Jun. 1987, and for Australia on 7 Sept 1989).
13. Mutombo v. Switzerland, Communication No. 13/1993, 27 Apr. 1994 (Committee against Torture views).
14. Office of the United Nations High Commissioner for Human Rights, Status of Ratification of the International Covenant on Civil and Political Rights (as at 26 Jan. 2006) , at 1 Apr. 2006.
15. 19 Dec. 1966, 999 UNTS 171 (entered into force generally on 23 Mar. 1976, and for Australia on 13 Nov. 1980).
16. United Nations Human Rights Committee, General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (2004), para. 12. (This general comment replaces General Comment No. 3.)
17. See Elihu Lauterpacht and Daniel Bethlehem, 'The Scope and Content of the Principle of Non-Refoulement' (Background Paper for Expert Roundtable Series, UNHCR, 2001), paras. 201-16, for a detailed justification of this proposition.
18. Jean Allain, 'The jus cogens Nature of non-refoulement', 13 IJRL 533 (2001).
19. Article 3 (non-discrimination), article 8 (exemption from exceptional measures), article 12 (personal status), article 13 (property rights), article 16 (access to courts), article 22 (public education), article 30 (transfer of assets), article 33 (non-refoulement) and article 34 (naturalisation).
20. Article 4 (religion) and article 27 (identity papers).
21. Article 15 (right of association), article 17 (wage earning employment), article 19 (liberal professions), article 21 (housing), article 23 (public relief), article 24 (labour legislation and social security) and article 28 (travel documents).
22. Alexander Aleinikoff, 'International Legal Norms and Migration: A Report', in Alexander Aleinikoff and Vincent Chetail (eds), Migration and International Legal Norms (2003), 1, 16.
23. United Nations High Commissioner for Refugees (UNHCR), 'The Concept of "Protection Elsewhere"', 7 IJRL 123, 124-5 (1995)
24. Karin Landgren, 'Deflecting International Protection by Treaty: Bilateral and Multilateral Accords on Extradition, Readmission and the Inadmissibility of Asylum Requests' (Working Paper no. 10, UNHCR, Jun. 1999), 23-4.
25. Guy Goodwin-Gill, The Refugee in International Law (2nd ed, 1996), 340.
26. See, e.g., United Kingdom, above n. 8, 121.
27. Ibid.
28. UNHCR, above n. 21, 125-6.
29. Goodwin-Gill, above n. 22, 340.
30. Article 25 of Council Directive 2005/85/EC of 1 Dec. 2005, on minimum standards on procedures in Member St ates for granting and withdrawing refugee status (Asylum Procedures Directive).
31. United Kingdom, above n. 8, 120.
32. Ibid.
33. Evidence of Erika Feller, Director, International Protection, UNHCR (22 Oct. 2003), United Kingdom, House of Lords, European Union Select Committee, Subcommittee F (Social Affairs, Education and Home Affairs). Inquiry into New Approaches to the Asylum Process , at 8 Apr. 2004.
34. UNHCR, above n. 21, 125, quoting United Kingdom, above n. 8, 120.
35. At present these ILC Articles on State Responsibility have no legal status of themselves. Nevertheless, they are a useful reference to the extent that they can be taken as representing established principles of customary international law, or being indicative of emerging principles. It is arguable that art. 16, especially as interpreted by Legomsky, veers more towards the latter than the former.
36. Stephen Legomsky, 'Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection' (PPLA/ 2003/01, UNHCR, Department of International Protection, 2003), 44-5.
37. Ibid. 45.
38. Ibid. 48.
39. Evidence of Erika Feller, above n. 30.
40. Ibid.
41. Ibid.
42. UNHCR, 'Finding Solutions to Secondary Movements: Elements for an International Cooperative Framework' (Paper presented at the Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali II), 2003).
43. See also, Legomsky, above n. 33, 8.
44. UNHCR, above n. 39.
45. UNHCR, above n. 21, 126.
46. Achermann and Gattiker, above n. 8, 26.
47. Evidence of Erika Feller, above n. 30
48. Goodwin-Gill, above n. 22, 343
49. UNHCR, Note on International Protection, UN Doc A/AC.96/815 (1993), para. 22.
50. UNHCR, Note on International Protection, UN Doc A/AC.96/815 (1993), para. 21.
51. Legomsky, above n. 33, 86-7.
52. European Council on Refugees and Exiles, Amnesty International and Human Rights Watch, Refugee and Human Rights Organisations Across Europe Call on EU to Scrap Key Asylum Proposal, Press Release (29 Mar. 2004), , at 26 Apr. 2004
53. Justice and Home Affairs: Ministers Agree Half of Remaining Asylum Package', European Report No. 2856 (31 Mar. 2004), .
54. UNHCR, UNHCR Regrets Missed Opportunity to Adopt High EU Asylum Standards, UNHCR Press Releases (30 Apr. 2004), .
55. Senate Select Committee on a Certain Maritime Incident (SSCCMI), 'A Certain Maritime Incident' (Majority Report, 2002), paras. 2.16-2.17
56. Marion Wilkinson, 'Secret File: Operation Relex', Sydney Morning Herald (Sydney, 28 Oct 2002), 13. Previously, the ADF's role in border protection had been to intercept unauthorised boats after they had entered Australian waters and escort them to an Australian port (Operation Cranberry): SSCCMI, this note, para. 2.7.
57. SSCCMI, above n. 48, para. 2.21; Department of Defence, Australian Defence Force Operations, , at 1 Apr. 2006.
58. Wilkinson, above n. 48.
59. Migration Act s 245F(9).
60. SSCCMI, above n. 48, para. 2.74.
61. SIEVs 6 and 10 both sank at some point during the course of interception and tow back towards Indonesia: Ibid.
62. Mercifully, all but two of the passengers were successfully rescued and transported first to Christmas Island and then to Nauru: Ibid.
63. Commonwealth of Australia, Official Committee Hansard: Budget Estimates Supplementary Hearings, Senate Legal and Constitutional Legislation Committee, 25 Nov. 2003, 8 (Ms Leon, Attorney-General's Department).
64. Illustrative of Australia's point, Indonesia has, in fact, recently become a party to both the International Covenant on Economic Social and Cultural Rights and the ICCPR, with effect from 23 May 2006, simply for the purpose of meeting Asian Development Bank loan conditionality: Cath Hart, '"'Foreign Aids Fears'" the Cause of Anger', The Australian, 19 Apr. 2006, 4.'
65. 'By Invitation Only: Australian Asylum Policy' (Report, Human Rights Watch, 2002), 51-2.
66. Ibid. 49.
67. David Marr and Marion Wilkinson, Dark Victory (2003), 218.
68. Matt Price, Kimina Lyall and Louise Milligan, 'Indonesia Rocks the Boat', The Weekend Australian, 15-16 Nov. 2003, 2.
69. 'Australia Denies Treating Indonesia as Dumping Ground for Refugees', Agence France Presse (Melbourne), 13 Nov. 2003, .
70. 'By Invitation Only', above n. 54, 49.
71. Kimina Lyall et al, 'Not Your Trash Bin: Jakarta', The Australian, 13 Nov. 2003, 1
72. Sophie Morris, 'Nowhere Left to Turn', The Australian, 12 Nov. 2003, 13.
73. Meaghan Shaw and David Wroe, 'Spat Flares with Jakarta over Kurds', The Age (Melbourne), 15 Nov. 2003, 2.
74. Marianne Kearney, 'Indonesia Interns Melville Island Boatpeople', The Age (Melbourne), 27 Dec. 2003, 5.
75. ABC Online, 'Failed Asylum Seekers Back in Turkey', ABC Online News, 15 Jan. 2004.
76. 'By Invitation Only', above n. 54, 58.
77. Forced Migration and Refugee Studies American University in Cairo, Outreach: Legal Aid Project, , at 27 May 2004.
78. Michael Kagan, 'Assessment of Refugee Status Determination Procedure at UNHCR's Cairo Office 2001-2002' (Dec. 2002), 23.
79. UNHCR, Procedural Standards for Refugee Status Determination under UNHCR's Mandate (2004), Annex 4-2 (RSD Assessment Form).
80. Ibid.
81. Article 1F provides: 'The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.'
82. UNHCR, above n. 67, Annex 4-2 (RSD Assessment Form).
83. Ibid. Annex 6-1 (Notification of Negative RSD Decision).
84. Ibid., 7-3.
85. Commonwealth of Australia, Proof Committee Hansard: Budget Estimates, Senate Legal and Constitutional Legislation Committee, 26 May 2004, 58 (Ms Greaves, Department of Immigration).
86. As at 30 Nov. 2003, the number was 3,926: Department of Immigration, Answer to Question no. 4 taken on notice at 25 November 2003 Supplementary Budget Estimates Hearings (2004), Senate Legal and Constitutional Legislation Committee, , at 31 May 2004.
87. Commonwealth of Australia, above n. 73. As at 30 Nov. 2003, the number was 703: Department of Immigration, above n. 73. There is reason to suspect that some who repatriated may have been recognised refugees: See below n. 76.
88. Commonwealth of Australia, above n. 73. As at 30 Nov. 2003, the number was 795: Department of Immigration, above n. 73.
89. On 6 May 2004, there were 217 recognised refugees in Indonesia of whom 153 had been recommended for resettlement: Matthew Moore and Michael Gordon, 'A Life Half-Lived', Sydney Morning Herald 6 May 2004, .
90. As at 30 Nov. 2003, the number of recognised refugees awaiting resettlement was 241: Department of Immigration, above n. 73.
91. On 25 Nov. 2003, Mr Killesteyn of the Department of Immigration informed the Senate Legal and Constitutional Legislation Committee that since the commencement of the Australia-Indonesia Regional Cooperation Arrangement, 1,093 asylum seekers had been recognised as refugees of whom 778 had been resettled: Commonwealth of Australia, Official Committee Hansard: Budget Estimates Supplementary Hearings, Senate Legal and Constitutional Legislation Committee, 25 Nov. 2003, 6 (Mr Killesteyn, Department of Immigration). The figure obtained by subtracting the figure of 778 resettled refugees from the figure of 1,093 recognised refugees is 315. However, when Senator Bartlett asked whether 315 refugees were awaiting resettlement, Mr Killesteyn replied, 'I would need to take that on notice and confirm precisely how the arithmetic works. On the basis of the advice here that is not totally clear': Ibid. 41. The inference is open that some recognised refugees may have repatriated.
92. As at 30 Nov. 2003, the number was 462: Department of Immigration, above n. 73.
93. Ibid.
94. Commonwealth of Australia, above n. 76, 39.
95. Interview with Michel Gabaudan, UNHCR Regional Representative (Melbourne, 21 Nov. 2003).
96. 'By Invitation Only', above n. 54, 56.
97. Interview with Michel Gabaudan, above n. 80.
98. Migration Act s 91 C.
99. Migration Act s 91D and Migration Regulations reg. 2.12A. The 'agreement between Australia and PRC' is defined as 'the agreement constituted by the Memorandum of Understanding the English text of which is set out in Schedule 11, together with the exchange of the letters between representatives of Australia and PRC dated 15 April 2004 and 16 April 2004 the text of which is set out in Schedule 12': Migration Regulations reg. 2.12A(3).
100. The author has discussed the subdivision AI provisions at length elsewhere: Savitri Taylor, 'Australia's "Safe Third Country" Provisions: Their Impact on Australia's Fulfillment of the Non-Refoulement Obligations Imposed by the Refugee Convention, the Torture Convention and the ICCPR' (1996), 15, University of Tasmania Law Review, 196.
101. The actual description in the Migration Act is 'any country (the available country) apart from: (i) Australia; or (ii) a country of which the non-citizen is a national; or (iii) if the non-citizen has no country of nationality - the country of which the non-citizen is an habitual resident': Migration Act s 91N(2).
102. Migration Act s 91N(2).
103. As at 1 Apr. 2006.
104. See above n. 53.
105. Department of Immigration, 'Border Protection - People Smuggling - Australia's Experience and Policy Responses - A Background Paper' (2002).
106. Philip Ruddock, Agreement with South Africa on People Smuggling, MPS 073/ 2002 (2 Aug. 2002), http://www.minister.immi.gov.au/media_releases/ ruddock_media02/r02073.htm, at 8 Apr. 2004.
107. Migration Act s 91P.
108. Migration Act s 91Q(3).
109. Migration Act s 91Q(7).
110. The High Court has indicated in relation to similar powers contained in other parts of the Migration Act that it considers it inappropriate to grant relief which would effectively amount to requiring the Minister to do what the Minister is not compelled to do.
111. The Migration Act makes the Minister accountable to Parliament for each decision to allow an application to be made: Migration Act s 91 Q(4)-(6). Two s 91Q statements for the period 1 Jul.-31 Dec. 2003 were tabled in Parliament on 10 Feb. 2004, and one s 91Q statement for the period 1 Jul.-31 Dec. 2005 was tabled in Parliament on 27 Mar. 2006.
112. See the preceding section for a discussion of minimum procedural safeguards necessary in the determination of the merits of asylum claims.
113. [1997] 1494 FCA (19 Dec. 1997) and supplementary reasons in Minister for Immigration & Multicultural Affairs v. Thiyagarajah [1998] 152 FCA (4 Mar. 1998).
114. Prior to the decision in the Thiyagarajah case, decision makers had proceeded on the understanding that it was only if a refugee had in another country the status described in article 1E that Australia could be said not to have protection obligations towards the person itself.
115. Al-Zafry v. Minister for Immigration and Multicultural Affairs [1999] FCA 443 (Emmett J, 25 Mar. 1999), para. 26. Appeal dismissed by the Full Federal Court in Al-Zafiry v. Minister for Immigration & Multicultural Affairs [1999] FCA 1472 (Full Court, 29 Oct 1999).
116. Department of Immigration, Procedures Advice Manual 3: Refugee Law Guidelines (Jan. 2003), para. 11.1.2.
117. [2003] FCAFC 152 (17 Jul. 2003).
118. Department of Immigration, Procedures Advice Manual 3: Refugee Law Guidelines (Jan. 2003), para. 11.1.2.
119. Wadie Said, 'Palestinian Refugees: Host Countries, Legal Status and the Right of Return' (2003), 21(2) Refuge 89
120. Interview with Michel Gabaudan, above n. 80
121. NAGV and NAGW of 2002 v. MIMIA & Anor [2004] HCATrans 327 (1 Sept 2004).
122. NAGV and NAGW of 2002 v. MIMIA & Anor [2004] HCATrans 327 (1 Sept 2004).
123. [2002] FCA 1456 (27 Nov. 2002).
124. NAGV v. Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 144 (27 Jun. 2003).
125. NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural Affairs [2005] HCA 6 (2 Mar. 2005), para. 53, per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. Kirby J delivered a separate concurring judgment.
126. In fact, after NAGV was decided, the statutory test of effective protection was applied to deny a protection visa to a Russian Jew on the basis that he had not taken all possible steps to avail himself of the Israeli Law of Return: N04/49020 [2005] RRTA 119 (Peter Gacs, 17 May 2005).
127. [2005] FCAFC 272 (23 Dec. 2005).
128. Ibid. para. 63
129. Ibid. para. 2.
130. See discussion of the Asylum Procedures Directive in a previous section of this article.
131. Minister for Immigration and Multicultural Affairs v. Applicant C [2001] FCA 1332 (Full Federal Court, 18 Sept. 2001).
132. Department of Immigration, Procedures Advice Manual 3: Refugee Law Guidelines (Jul. 2005), para. 12.2.1.
133. N04/48668 [2005] RRTA 196 (Dr Ron Whitton, 4 Apr. 2005)
134. N05/51766 [2005] RRTA 255 (Andrew Jacovides, 7 Oct. 2005). Cf N05/51625 [2005] RRTA 230 (Ms Christine Long, 13 Sept. 2005) in which the member said in relation to a Nepalese asylum seeker: 'There is nothing in the evidence before the Tribunal to suggest that the applicant has a legally enforceable right to enter and reside in any country other than his country of nationality although the country information available to the Tribunal indicates that practically speaking the applicant can enter and reside in India.'
135. Department of Immigration, Procedures Advice Manual 3: Refugee Law Guidelines (Jul. 2005), para. 12.2.1.
136. The Department of Immigration takes the view that the term 'reside' carries its ordinary English meaning, which is 'to dwell permanently or for a considerable time; have one's abode for a time...': Ibid., quoting the Macquarie Concise Dictionary 3rd edition.
137. Interview with Michel Gabaudan, above n. 80.
138. Article 27(2).
139. NAGV and NAGW of 2002 v. MIMIA & Anor [2004] HCATrans 327 (1 Sept 2004).
140. Ibid.
141. UNHCR Regional Office Canberra, 'Australia's Protection Obligations: Only a Last Resort?' in Discussion Paper No. 1/2004: The Principle of Protection Elsewhere (UNHCR Regional Office for Australia, New Zealand, Papua New Guinea and the South Pacific, 2003), 3.
142. NBLC v. Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272 (23 Dec. 2005), para. 48
143. per Graham J. See also SZAHC v. Minister for Immigration [2005] FMCA 449 (11 Apr. 2005)
144. SZGBY v. Minister for Immigration & Anor [2005] FMCA 1303 (22 Sept 2005).
145. V872/00A, V900/00A, V854/00A, V856/00A, and V903/00A v. Minister for Immigration & Multicultural Affairs [2002] FCAFC 185 (18 Jun. 2002).
146. Ibid. para. 78, per Tamberlin J.
147. Ibid.
148. Article 27(4) and 36(6) of the Asylum Procedures Directive.
149. Department of Immigration, 'The Principle of Effective Protection in the Australian Domestic Legal and Policy Context' in Discussion Paper No. 1/ 2004: The Principle of Protection Elsewhere (UNHCR Regional Office for Australia, New Zealand, Papua New Guinea and the South Pacific, 2003) 4.
150. UNHCR Regional Office Canberra, above n. 123.