A failed case of legal exceptionalism? Refugee status determination in Australia's 'excised' territory

International Journal of Refugee Law

Volumn 23, Issue 4, 2011, Pages 583-631

  Foster, Michelle ^a   Pobjoy, Jason ^b  

^a UNIVERSITY OF MELBOURNE   (Australia)

^b GONVILLE AND CAIUS COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

INTERNATIONAL LAW; REFUGEE;

AUSTRALIA;

EID: 82055196752     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eer025     Document Type: Article

References (276)

1. Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 Apr. 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 Jan. 1967, 606 UNTS 267 (entered into force 4 Oct. 1967) (referred to in the collective as the Refugee Convention or Convention).
2. See, S. Kneebone (ed.), Refugees, Asylum Seekers and the Rule of Law (Cambridge University Press, 2009) for a comprehensive account of these developments, especially in the developed North.
3. A. Macklin, 'Asylum and the Rule of Law in Canada: Hearing the Other (Side)' in S. Kneebone (ed.), above n. 2, 78-121 at 84.
4. Christmas Island - one of the 'excised offshore places' - is a territory of Australia in the Indian Ocean, approximately 2,600 km northwest of Perth, Western Australia. It lies 360km south of the Indonesian capital of Jakarta.
5. Referred to throughout the article as the offshore RSD process
6. Plaintiff M61/2010E v. Commonwealth; Plaintiff M69 of 2010 v. Commonwealth of Australia (2010) 272 ALR 14 (M61).
7. Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Migration Legislation Amendment Act (No. 1) 2001 (Cth); Migration Legislation Amendment (No. 5) 2001 (Cth); Migration Legislation Amendment Act (No. 6) 2001 (Cth). As the High Court explained in M61, the six Acts were all assented to, and for the most part came into operation, on the same day: see, M61 (2010) 272 ALR 14, 21 [29]. The package of legislation was designed to retrospectively validate certain action taken in respect of the Tampa incident; and to 'change the way in which persons who arrived in, or sought to enter, Australian territory without a valid visa were to be dealt with', M61 (2010) 272 ALR 14, 22 [29].
8. For discussion of the background to and implementation of the 'Pacific Strategy', see, P. Mathew, 'Australian Refugee Law in the Wake of the Tampa' (2002) 96 American Journal of International Law 661-676.
9. T. Magner, 'A Less than "Pacific" Solution for Asylum Seekers in Australia' (2004) 16 IJRL 53-90.
10. S. Kneebone, 'The Pacific Plan: The Provision of "Effective Protection"?' (2006) 18 IJRL 696-721.
11. M. Crock and B. Saul, Future Seekers II: Refugees and Irregular Migration in Australia (The Federation Press, 2006).
12. S. Taylor, 'Sovereign Power at the Border' (2005) 16 Public Law Review 55-77.
13. T. Penovic and A. Dastyari, 'Boatloads of Incongruity: the Evolution of Australia's Offshore Processing Regime' (2007) 13 Australian Journal of Human Rights 33-61.
14. J. McAdam and K. Purcell, 'Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum' (2009) 27 Australian Year Book of International Law 87-115.
15. The authors are indebted to David Manne of the Refugee Immigration and Legal Centre in Australia for the characterisation of the policy as embodying the elements of 'excision' and 'exile'
16. Migration Act 1958 (Cth) (Migration Act) s. 5(1). The amendments were made via the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); and the Migration Amendment Regulations (No. 6) 2005 (Cth).
17. See, N. Hancock, 'Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 (Cth)', Bills Digest, No. 176, 2001-02, 2.
18. As Hancock notes, this statement that the Act excised islands from the migration zone is found in 'popular perception, press releases, the second reading speech and even its title'
19. Migration Act, s. 46A.
20. Commonwealth, Parliamentary Debates, House of Representatives, 18 Sept. 2001, 30871 (Philip Ruddock).
21. The Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) inserted into s. 5(1) of the Migration Act the definition of 'excised offshore place', which includes: the Territory of Christmas Island; the Territory of Ashmore and Cartier Islands; the Territory of Cocos (Keeling) Islands; as well as an Australian sea installation and an Australian resources installation.
22. Migration Act, ss. 5(1)(e)-(f).
23. On 7 June 2002, the Government gazetted the Migration Amendment Regulations (No. 4) 2002 (Cth), which excised 'some 4000 islands off Queensland, Western Australia and the Northern Territory', M. Coombs, 'Excisions from the Migration Zone Policy and Practice', Research Note No. 42, Parliamentary Library, Parliament of Australia (2003), 2.
24. See, Senate Legal and Constitutional References Committee, Parliament of Australia, Migration Zone Excision: An Examination of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and Related Matters (2002). This report is hereafter referred to as the '2002 Senate Report' and the corresponding inquiry as the '2002 Senate Inquiry'. It is difficult to identify the precise number of islands affected by reference to the regulations alone since they define the excisions by reference to geographical position. Thus the Senate's figures were obtained from the Department of Immigration and are cited as 'approximately 4891 islands', at [2.34].
25. The Migration Amendment Regulations (No. 8) 2002 (Cth) excised Bernier Island, Dorre Island, Dirk Hartog and Faure Island. This was in response to the detection of a boat carrying suspected asylum seekers off the West Australian coast. However, these regulations were rescinded 5 days later when it was found that the boat was not carrying asylum seekers but, rather, was an illegal Sri Lankan fishing boat, which was subsequently detained under the Fisheries Management Act 1991 (Cth), see, Migration Amendment Regulations (No. 11) 2002 (Cth).
26. See, Department of Parliamentary Services, 'Chronology of Changes to Date', Research Note No. 5, Parliamentary Library, Parliament of Australia (2005). The government attempted to excise thousands of islands again, in 2003, by gazetting the Migration Amendment Regulations (No. 8) 2003 (Cth), but these were disallowed by the Senate on 24 Nov. 2003, see, ibid. For a critique of the process of excision by regulation.
27. See, E. Willheim, 'Government by Regulation: Deficiencies in Parliamentary Scrutiny?' (2004) 15 Public Law Review 9-12.
28. The Howard government reintroduced the Migration Legislation Amendment (Further Border Protection Measures) Bill (No. 2) 2002 (Cth) into the House of Representatives, on 26 Mar. 2003, but it was rejected by the Senate on 16 June 2003. As it was identical to the first Bill it was a 'potential double dissolution trigger', see, Department of Parliamentary Services, above n. 23.
29. The Migration Amendment Regulations (No. 6) 2005 (Cth) excised the islands proposed in the 2002 (and 2003) Bills, but it also extended to excise all Queensland islands north of latitude 21 degrees south (rather than the previous 12 degrees south). It thus excises more than 4,891 islands, however, a precise figure is not available. The Regulations stated that for the purposes of para (e) of the definition of 'excised offshore place', in sub-s. 5(1) of the Migration Act, the following islands were included: 'all islands that form part of Queensland and are north of latitude 21 degrees south; and all islands that form part of Western Australia and are north of latitude 23 degrees south; and all islands that form part of the Northern Territory and are north of latitude 16 degrees south', see, Item [1]. There was a motion to disallow the Regulations in the Senate, on 18 Aug. 2005, but this was not agreed. The government was successful because it had a majority in the Senate in 2005, for the first time during its reign.
30. Select Legislative Instrument 2005 No. 171; Explanatory Memorandum, Migration Amendment Regulations (No. 6) 2005 (Cth).
31. Migration Act, ss. 198A(1), 198(2)(d). It is interesting to note that in the transcript of the oral hearing in M61 (2010) 272 ALR 14, Justice Gummow characterised this provision as authorising an 'assault', see, Transcript of Proceedings, Plaintiff M61/2010E v. Commonwealth of Australia & Ors; Plaintiff M69 of 2010 v. Commonwealth of Australia & Ors [2010] HCATrans 218 (24 Aug. 2010).
32. Taylor, above n. 8, 59.
33. Indeed, the legislation appears to have been explicitly designed to lower procedural standards. As the (then) Minister noted at the time, 'people who come to either [Christmas Island or Ashmore Reef] from now on will be processed in accordance with the same criteria that would be used if they were on Nauru, if they were in Indonesia, if they presented their claims in Malaysia, if their claims were dealt with by the UNHCR in Pakistan and Iran', Philip Ruddock, Press Conference, 10 Sept. 2001, cited in Hancock, above n. 11, 032.
34. See, A. Francis, 'Bringing Protection Home: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing' (2008) 20 IJRL 273-313 at 297.
35. Kneebone notes that the Nauruan Government continually refused to grant visas to Australian lawyers who wished to represent asylum seekers in Nauru, Kneebone, above n. 8, 715. See also, Taylor, above n. 8, 60.
36. Kneebone, above n. 8, 709.
37. Of the group of 1,509 asylum seekers processed on Nauru, 985 refugees were resettled in those six countries, see, Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth) (2006) [3.90]. This report is hereafter referred to as the '2006 Senate Report' and the corresponding inquiry as the '2006 Senate Inquiry'. The most recent figures are contained in a Press Release on closing Nauru, in which it was noted that a total of 1,637 people were detained in the Nauru and Manus facilities of whom 61% were resettled in Australia, see, Senator C. Evans, 'Last Refugees Leave Nauru', Media Release, 8 Feb. 2008.
38. See, Senator C. Evans, 'New Directions in Detention - Restoring Integrity to Australia's Immigration System', speech, Australian National University, Canberra, 29 July 2008: 'When I asked why the eight Burmese had not been settled in Australia in accordance with international law there was an embarrassed silence. Eventually the answer emerged. The Howard government had ordered they stay put. They had been left rotting on Nauru because the Howard government wanted to maintain the myth that third-country settlement was possible.'
39. Senator C. Evans, 'Address to the United Nations High Commission for Refugees on World Refugee Day', speech, Canberra, 20 June 2008, .
40. E.g., the government scrapped the highly criticised system of Temporary Protection Visas and abolished the '45 day rule', which denied work rights and Medicare access to some refugee applicants.
41. On 31 Mar. 2008, the International Organization for Migration, which operated the offshore processing centres in Nauru and Manus Province, closed the centres, returned the sites and gifted the assets of the centres to the host governments, Department of Immigration and Citizenship, Annual Report 2007-08 (2008), 133.
42. Senator C. Evans, 'Refugee Policy under the Rudd Government - The First Year', speech, Refugee Council of Australia, 17 Nov. 2008, .
43. This appears first to have been adopted at the 2007 Labor Party Conference, see, Australian Labor Party, National Platform and Constitution 2007, at [158]: 'To further deter people smugglers, Labor will continue the excision of Christmas Island, Cocos (Keeling) Islands and Ashmore Reef from Australia's migration zone'. However, it is reported that at the conference the then Labor immigration spokesman, Tony Burke, told the conference '[t]he (Howard) government have excised a further 3000-4000 islands.
44. We would return them to the migration zone', see, D. Crenshaw, 'Govt denies backflip on island excision', The Age (Mebourne), 21 Feb. 2008.
45. See also, Evans, above n. 32: 'The asylum claims of future unauthorised boat arrivals will be processed on Christmas Island. Christmas Island will soon have an increased capacity for offshore processing of unauthorised arrivals with the opening of the new immigration detention centre built by the former Government'.
46. Evans, above n. 33.
47. S. Kneebone, 'The Australian Story: Asylum Seekers Outside the Law' in Kneebone, above n. 2, 171.
48. See also, 2002 Senate Report, above n. 19, [4.46], which had recommended against the wide ranging excision in 2002 precisely for this reason.
49. Indeed, unlike those on Nauru under the 'Pacific Solution', applicants on Christmas Island cannot alternatively apply for a visa under the offshore humanitarian scheme. See, Francis, above n. 29, 304.
50. Christmas Island had been used to house asylum seekers prior to the Rudd government's election. Temporary facilities for asylum seekers were established on Christmas Island at Phosphate Hill in late 2001. On 12 Mar. 2002, the Howard Government announced the replacement of the existing temporary facility and the construction of a purpose designed and built reception and processing centre on Christmas Island with a capacity of 1,200 people. In June 2002, after a tender process, a contractor was appointed to design and construct the facility on a fast track basis, Department of Finance and Administration document, 'Proposed Christmas Island Immigration Reception and Processing Centre', Sept. 2003. In 2007, the Department of Immigration and Citizenship completed construction of the reception and processing centre on Christmas Island.
51. Migration Act, s. 494AA. It should be noted that prior to 2008 some asylum seekers were processed on Christmas Island (see, Taylor, above n. 8, 65), however, it appears that it was a small number and that they were processed on an ad hoc basis, without any established procedure.
52. See, Evans, above n. 38.
53. M. Grewcock, 'Systems of Exclusion: the Rudd Government and the "End" of the Pacific Solution' (2007-08) 19 Current Issues in Criminal Justice 363-8 at 365.
54. See also, M. Crock and D. Ghezelbash, 'Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals' (2010) 19 Griffith Law Review 238-87.
55. This was one of the many descriptions adopted of the Guantanamo Bay Naval Base, see, F. Johns, 'Guantanamo Bay and the Annihilation of the Exception' (2005) 16 European Journal of International Law 613-35 at 620.
56. J. J. Paust, 'Post-9/11 Overreaction and Fallacies Regarding War and Defence, Guantanamo, The Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commission' (2004) 79 Notre Dame Law Review 1335-64 at 1346.
57. Australian Human Rights Commission, 'Immigration Detention and Offshore Processing on Christmas Island' (2009), [8.1].
58. For an excellent description of the extreme and punitive nature of Christmas Island detention, see, Grewcock, above n. 46, 364-5.
59. It should be noted that even those OEPs who have been transferred to the mainland are still amenable to the offshore RSD process, because the significant factor is initial place of arrival
60. As the High Court noted in M61, '[m]uch emphasis was given in the Manual to the offshore RSD process being "a non-statutory process"', M61 (2010) 272 ALR 14, 24 [42]
61. [61M] (2010) 272 ALR 14, 24 [42]
62. This was how the petitioners in Rasul v. Bush, 542 US 466 (2004), framed their case, see, Johns, above n. 47, 619.
63. Indeed, the Refugee Status Assessment Procedures Manual (Mar. 2010) (RSA Manual) expressly states (at [1.3]) that, '[t]he RSA procedures are modeled closely on the onshore Protection Visa determination procedures'.
64. See, RSA Manual. There is a separate Manual for Independent Reviewers entitled, 'Guidelines for the Independent Merits Review of Refugee Status Assessments', 1 Apr. 2010 (IMR Guidelines). The RSA Manual and the IMR Guidelines are referred to in the collective as 'the Manuals'. Copies of the Manuals are on file with the authors.
65. The latest available version of the RSA Manual is dated Mar. 2010 and the latest available version of the IMR Guidelines is dated 1 Apr. 2010, although the High Court stated that argument of the matters before the Court proceeded on the basis that the editions of those manuals produced in Sept. 2009 and Aug. 2009, respectively, were used in connection with the assessment and review of each plaintiff's claim in that case, M61 (2010) 272 ALR 14, 24 [38].
66. RSA Manual [1.3]. Interestingly, the precise language of s. 36 of the Migration Act is used.
67. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1979, reedited 1992), HCR/IP/4/Eng/REV.1 (UNHCR Handbook).
68. See, e.g., RSA Manual, [1.3]. The RSA Manual further states that an RSA officer may refer to 'DIAC's Refugee Law Guidelines, which provide advice and interpretation of Australian refugee law relevant to the assessment of Australia's protection obligations under the Refugees Convention', [1.3].
69. RSA Manual, [1.3]; IMR Guidelines [1.4], [2.3]. Note the difference in language adopted in the RSA Manual as compared to the IMR Guidelines - the former provides that these sources should guide RSA officers, while the latter source provides that these sources may guide Independent Reviewers. Paragraph 2.3 of the IMR Guidelines states: 'While the RSA process is non-statutory, when assessing a claim for protection, Independent Reviewers may still be guided by the legislated interpretation of the Refugees Convention in ss. 26 and 91R-91U of the [Migration Act] and Australian case law on the interpretation of "protection obligations". It is important to note that these sources of interpretation are not binding authorities but may be useful as an aid to interpreting aspects of the Convention'.
70. See, e.g., ss. 91R, 91S, 91T of the Migration Act is used.
71. Australian Human Rights Commission, above n. 48, [8.2].
72. In practice, it appears that to date the Minister has alluded to these international obligations in successful declarations. Under s. 46A(4) the Minister is required to table each declaration in parliament setting out 'the reasons for the determination, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest' (s 46A(4)(b)). An analysis of declarations tabled between 10 Mar. 2009 and 28 Sept. 2010 (on file with authors) reveals that they contain the following standard explanation: 'The particular circumstances of these [number of] cases are that they arrived as offshore entry persons and have been found to be owed protection'.
73. The media has also recently reported that interpreters for OEPs on Christmas Island have 'been working without accreditation or translating experience', Y. Narushima, 'Refugee translators "unqualified"', The Age (Melbourne), 4 Feb. 2011.
74. Migration Act, s. 494AA.
75. The latter is addressed in detail in Part 4 below
76. Attachment C of the IMR Guidelines: 'IAAAS is not "legal advice" and many IAAAS agents are not lawyers. They are registered migration agents, who are professional and independent and qualified to give migration advice and assistance with applications'.
77. Australian Human Rights Commission, above n. 48, [12.4].
78. Evans, above n. 33.
79. E.g., an RRT member 'holds office for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for re-appointment' (Migration Act, s. 461(1)). A member may only be removed during his or her term in certain specified circumstances including 'on the ground of proved misbehaviour or physical or mental incapacity' (Migration Act, s. 468(1)) and other specific grounds (Migration Act, s. 468(2)).
80. [61M] (2010) 272 ALR 14, 26 [50]
81. [2002] Senate Report, above n. 19, [7.17]. This impression was further buttressed by an incident in early 2010 when the Minister for Immigration and Citizenship announced that certain asylum seekers were on a 'removal pathway', despite the fact that some of them were awaiting the results of the IMR.
82. J. Saulwick and Y. Narushima, 'Iraqi rejects flown off Christmas Island', The Age (Melbourne), 6 Apr. 2010.
83. S. Lewis and I. McPhedran, 'Some asylum seekers put on removal pathway, says Minister', The Courier Mail (Brisbane), 28 Mar. 2010.
84. See, RSA Manual [46.1], [46.2]; IMR Guidelines [13.1], [13.2].
85. Section 415 of the Migration Act states that, '(1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or © if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision.' By contrast, the IMR Guidelines state (at [13.1]) that on notifying a claimant that the Independent Reviewer consider that they are a refugee, 'the Departmental contact officer should also counsel the OEP that the positive review outcome does not guarantee eventual resettlement in Australia'.
86. Johns, citing Carl Schmitt, above n. 47, 614. Given the overwhelmingly discretionary nature of the system, it does seem more amenable to this argument than say the Guantanamo Bay scheme, which Johns concludes is 'less an outcome of law's suspension or evisceration than of elaborate regulatory efforts by a range of legal authorities'. See further, Taylor, above n. 8, 76.
87. E.g., a claim grounded in Australia's non-refoulement obligations under international human rights law. S. 417 provides the Minister with a discretion to substitute a decision more favourable to an applicant than one handed down by the RRT, '[i]f the Minister thinks that it is in the public interest to do so'. For a good overview of the history of the section 417 power, see, Senate Select Committee on Ministerial Discretion in Migration Matters, Parliament of Australia, Report (2004), ch. 2. The Migration Amendment (Complementary Protection) Bill 2011, passed by both Houses of the Commonwealth Parliament, 19 Sept. 11.
88. Evidence to Senate Standing Committee on Legal and Constitutional Affairs (Additional Budget Estimates), Parliament of Australia, Canberra, 19 Feb. 2008, 31 (Senator C. Evans). Similar sentiments were expressed by the Parliamentary Secretary for Multicultural Affairs and Settlement Services in the second reading speech for the Migration Amendment (Complementary Protection) Bill 2009 (Cth), see, Commonwealth, Parliamentary Debates, House of Representatives, 9 Sept. 2009, 8987-8 (Mr Laurie Ferguson, Parliamentary Secretary for Multicultural Affairs and Settlement Services).
89. S. Gageler, 'Impact of Migration Law on the Development of Australian Administrative Law' (2010) 17 Australian Journal of Administrative Law 92-105 at 93-96.
90. At the time, a number of commentators noted the possibility that the suspension of processing for Afghan and Sri Lankan claimants amounted to a violation of the principle of non-discrimination, in particular, that contained in art. 26 of the International Covenant on Civil and Political Rights, opened for signature 16 Dec. 1966, 999 UNTS 171 (entered into force 23 Mar. 1976), and art. 3 of the Refugee Convention.
91. M. Foster, 'Refugee Obligations Violated', The Age (Melbourne), 13 Apr. 2010.
92. J. McAdam and K. Murphy, 'Refugee processing freeze breaches international law', The Australian (Sydney), 14 Apr. 2010.
93. S. Taylor, 'The asylum freeze and international law' The Inside Story, 14 Apr. 2010.
94. J. Pobjoy and K. Purcell, 'Asylum seeker strategy unsound', The Drum, ABC Unleashed, .
95. See also, Joint Opinion (D. Mortimer SC, C. Horan and K. Foley), 'In the matter of Changes to Australia's Immigration Processing System - Suspension of Processing of Asylum Applications from Sri Lanka and Afghanistan', 19 May 2010 (copy on file with authors).
96. 'At 30 June 2010, there were 901 clients affected by the suspension in immigration detention. Of these, 759 clients were Afghan and 142 clients were Sri Lankan', DIAC, above n. 82, 8. It also resulted in the reopening of several isolated detention centres, including the RAAF Base Curtin Facility. The UNHCR was highly critical, noting in Apr. 2010, that '[t]he combination of mandatory detention, suspension of asylum claims and the geographical isolation of detention facilities such as Curtin Air Force Base in Western Australia - all without any effective judicial oversight - is a deeply troubling set of factors'.
97. 'UNHCR disappointed at Australian decision to reopen detention centre for asylum seekers', 20 Apr. 2010, available at .
98. See further, Australian Human Rights Commission, above n. 48, 15.
99. Senator C. Evans, Smith MP and B. O'Connor MP, 'Changes to Australia's Immigration Processing System', Joint Media Release, 9 Apr. 2010.
100. See also, Senator C. Evans et al., 'Suspension on Processing of All New Applications from Asylum Seekers from Sri Lanka and Afghanistan', speech, Parliament House, Canberra, 9 Apr. 2010.
101. 'Evolving country information from Sri Lanka and Afghanistan is likely to have a significant effect on the outcome of assessments as to whether asylum-seekers have a well-founded fear of persecution within the meaning of the Refugees Convention. The likelihood of people being refused visas and being returned safely to their homelands will increase.. .We've already got evidence, since the new country information has come in, of decreasing approval rates. And so, the message is the circumstances in Australia have changed and that, increasingly, persons from Sri Lanka and Afghanistan are being refused asylum in this country', Evans et al., above n. 85; and, 'The combined effect of this suspension and the changing circumstances in these two countries will mean that it is likely that, in the future, more asylum claims from Sri Lanka and Afghanistan will be refused', Evans, Smith, O'Connor, above n. 85.
102. See, e.g., Evans, Smith, O'Connor, ibid., where Evans noted: 'The changes we are announcing today send a strong message to people smugglers that they cannot guarantee a visa outcome for their clients and a message to those seeking to employ people smugglers that they may find themselves found not to be refugees and returned to their country of origin'. No mention was made at all of the impact of the suspension on onshore applicants.
103. Since OEPs are prohibited from applying for a visa, to institute a suspension was straightforward. By contrast, for onshore applicants, the situation was more complicated and much more likely to be challengeable. Section 47(1) of the Migration Act states that the Minister, 'is to consider a valid application for a visa'. While s. 51(1) of the Migration Act permits the Minister to, 'consider and dispose of applications for visas in such order as he or she considers appropriate', a decision to suspend the consideration of applications from persons of a particular nationality may well be open to challenge as not being authorised by the Act, especially considering that the Minister has the power to suspend the consideration of claims of a particular visa class (s. 84) but not of a particular race or nationality.
104. Department of Immigration and Citizenship, Suspension of Asylum Claims Processing and Country Information review for Afghanistan and Sri Lanka, 9 Apr. 2010, .
105. In the words of the English Court of Appeal, as cited by Johns, above n. 47, 614.
106. The Explanatory Statement to the Migration Amendment Regulations (No. 6) 2005 (Cth), which excised the further 4,891 islands stated: 'The Commonwealth will continue to ensure that, while unauthorised arrivals at excised offshore places cannot apply for visas, appropriate arrangements will ensure that Australia continues to fulfill its obligations under the United Nations Convention relating to the Status of Refugees and under other relevant international instruments'.
107. In M61 (2010) 272 ALR 14, 24 [40], the High Court explained that, '[t]he adoption of these procedures, and their application in these particular cases, can only be understood as implementing the announcements that have been mentioned: one that the Pacific Strategy would no longer be followed; the other that steps of the kind ultimately recorded in the RSA Manual and the [IMR Guidelines] would be undertaken as the means of meeting Australia's obligations under the Refugees Convention and Refugees Protocol, instead of following the Pacific Strategy'
108. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 Jan. 1980) (VCLT), art. 29. This is the default position, unless the treaty evinces a contrary intention - an issue not relevant here. The UNHCR has also pointed out, in its submission to the 2002 Senate Inquiry, that in its view this is, 'reinforced by the Federal Clause contained in Annex III, Article VI of the 1967 Protocol, to which Australia, as a State Party, is bound'.
109. UNHCR, Response of the Office of the United Nations High Commissioner for Refugees to the Senate, Legal and Constitutional Committee Request for Comments, .
110. Indeed, international legal obligations may also apply wherever Australia is exercising jurisdiction, implying extra-territorial application, see, e.g., Human Rights Committee, General Comment 31, 'The Nature of the General Legal Obligation Imposed on States Parties to the Covenant', UN doc. CCPR/C/21/Rev.1/Add. 13, 29 Mar. 2004.
111. This is consistent with the view taken by the European Court of Human Rights in the oft-cited decision in Amuur v. France, 17/1995/523/609, Council of Europe, European Court of Human Rights, 25 June 1996, where the Court ruled that the denial of access to domestic courts on the basis that a refugee had arrived in a so-called 'international zone' was invalid. See also, art. 27 of the VCLT, which states that '[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'.
112. Parliament of Australia, Department of Parliamentary Services, 'Excising Australia: Are We Really Shrinking?', 31 Aug. 2005, 1.
113. See, 2002 Senate Report, above n. 19, 13. Although the number of inhabitants is probably higher, since that Report dealt with only 4,000 excisions (rather than the ultimate 4,891). Importantly, many of the inhabitants are the indigenous people of the Torres Strait Islands, and the government made explicit reference to this in its Explanatory Statement in introducing the Migration Amendment Regulations (No. 6) 2005 (Cth): 'In particular, in respect of the Torres Strait Islands, the Act allows inhabitants of the Protected Zone (as established by the Torres Strait Treaty) to move freely in connection with the performance of their traditional activities. These provisions will continue to apply and traditional inhabitants of the Torres Strait will not be affected by the inclusion of the Torres Strait Islands in the definition of "excised offshore place"'.
114. Above n. 96.
115. 'The number of [OEPs] being detained on Christmas Island has significantly increased over the 2009-10 period. When Ombudsman staff visited the island in Oct. 2008 there were only 31 people in detention. By Sept. 2009, this number had reached 700. When Ombudsman staff visited the Christmas Island IDC in late Feb. 2010, there were 1,700 people detained in the centre, growing to 2,441 people detained on Christmas Island as at 25 June 2010', Commonwealth Ombudsman, Annual Report 2009-10 (2010), 100. Further, there have been increased incidences of self harm. Between July 2008 and May 2010 there were 9 reported cases of self harm, see, Letter from Jackie Wilson, First Assistant Secretary, Department of Immigration & Citizenship to the Secretary, Senate Legal and Constitutional Affairs Committee, 2 July 2010. It is also more likely that OEPs will remain in immigration detention for a longer period than on the mainland, as the Minister is under no statutory pressure to assess applications with a specified timeframe. See generally, Australian Human Rights Commission, above n. 48.
116. For a recent discussion, see, Kneebone, above n. 41.
117. Refugee Convention, art. 33(1), emphasis added.
118. CAT, opened for signature 10 Dec. 1984, 1465 UNTS 85 (entered into force 26 June 1987), art. 3.
119. ICCPR, above n. 83, arts. 6-7.
120. CRC, opened for signature 20 Nov. 1989, 1577 UNTS 3 (entered into force 2 Sept. 1990), arts. 6, 37.
121. For a comprehensive overview, see, J. McAdam, Complementary Protection in International Refugee Law (Oxford University Press, 2007).
122. VCLT, art. 26. As the UNHCR explains, '[f]air and efficient procedures are an essential element in the full and inclusive application of the Convention. They enable a State to identify those who should benefit from international protection under the Convention.. .', UNHCR, Global Consultations on International Protection, 2nd Mtg, 'Asylum Processes (Fair and Efficient Asylum Procedures)', EC/GC/01/12 (31 May 2001) [5].
123. These are said to be 'core procedural standards necessary to preserve the integrity of the asylum regime as both fair and efficient', UNHCR, 'Asylum Processes', above n. 105, [6]. See also, Executive Committee of the High Commissioner's Programme (ExCom) Conclusions Nos. 8, 28, 85, cited in Francis, above n. 29, 278. See also, UNHCR Handbook, above n. 58, [29]. Although there is controversy as to whether art. 14(1) of the ICCPR - which requires that determinations of rights and obligations in a suit at law be made by a competent, independent and impartial tribunal established by law - applies to RSD, the factors considered by the Human Rights Committee in assessing independence can be applied by analogy. These include: 'the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office. .. and the actual independence of the judiciary from the executive branch and the legislature'.
124. G. Heckman, 'Canada's Refugee Status Determination System and the International Norm of Independence' (2008) 25 Refuge 79-102 at 84.
125. The drafting history of art. 16 makes clear that the right to access courts applies to all refugees (irrespective of whether or not they have been admitted into a state).
126. For a detailed discussion, see, J. C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005), 626-56.
127. Further, as the UNHCR argued before the 2002 Senate Inquiry, Australia has adopted conclusions of the ExCom that refer to the need for fair and effective procedures for determining refugee status and protection needs. It argued: 'If lesser standards relating to procedures or lesser status accorded under these procedures are envisaged due to the nature of arrival of asylum seekers, this would not be in accord with international protection obligations', 2002 Senate Report, above n. 19, [5.35]-[5.36].
128. These figures are available in the RRT/MRT Annual reports. In 2007-08 the RRT set aside 18% of primary decisions (ix); in 2008-09 the figure was 19% (25) and in 2009-2010 the figure was 24% (7).
129. D. O'Brien, 'Is Australia Giving Refugees A Fair Go?', speech, University of Western Sydney, Parramatta, 12 Aug. 2009 (on file with authors).
130. HREOC submission to the 2006 Senate Inquiry, cited in the 2006 Senate Report, above n. 32, 47.
131. UNHCR submission to the 2006 Senate Inquiry, cited in the 2006 Senate Report, above n. 32, 4.
132. HREOC submission to the 2002 Senate Inquiry, cited in the 2002 Senate Report, above n. 19, [5.13].
133. The statistics reveal a relatively high number of successful outcomes from the RSA process. Of the 2,914 RSAs completed in 2009-10, 2,216 individuals (73%) were found to be refugees and 788 (27%) were found not to be refugees and would not have been able to lodge an application for a protection visa. In 2009-10, 572 requests for review of their primary negative RSA outcome (Independent Merits Review) were received and 184 completed.
134. Of those completed 81 (44%) were found to be refugees, J. Phillips, 'Asylum Seekers and Refugees: What are the Facts?', Background Note No. 14, Parliamentary Library, Parliament of Australia (2011), 9.
135. See, A. Metcalfe, Budget Estimates 2010-2011, May 2010: 'What we are seeing now is a significant proportion [of irregular maritime arrivals] not to be refugees. .. we have seen a changing outcome for the decision making.. .. But there is a clear trend where the department is now refusing many more applications from nationals of those two countries [Sri Lanka and Afghanistan] than we had been, say, a year ago', 26 May 2010 at L & C 110 and 111. On 27 May 2010, Mr Metcalfe reiterated that there had been a 'significant increase' in refusal rates, see, L & C 23, Thurs. 27 May 2010.
136. Human Rights Committee, 'Concluding Observations of the Human Rights Committee: Australia', UN doc. CCPR/C/AUS/CO/5, 7 May 2009, [23]. See also, the UNHCR's submission to the 2010 Universal Periodic Review in which it expressed its concern 'with the dual character of the legal framework of offshore processing' and recommended that the process be secured by legislation to ensure 'coherency and consistency between the UNHCR's international protection standards, Australian jurisprudence and statutory interpretations', UNHCR, Submission to the Office of the High Commissioner for Human Rights', Compilation Report-Universal Periodic Review, Australia (July 2010), 4.
137. Ad Hoc Committee on Statelessness and Related Problems, 'Proposed Draft Convention Relating to the Status of Refugees', UN doc. E/AC.32.L.38, 15 Feb. 1950, Annex I (draft art. 26); Annex II (comments, 57), cited in G. S. Goodwin-Gill, 'Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention and Protection' in E. Feller, V. Türk and F. Nicholson (eds.), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press, 2003) 185 at 189.
138. This article does not consider whether the detention of OEPs might constitute a 'penalty' under art. 31.
139. 'That Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt', R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 at 527 (Brown LJ).
140. Hathaway, above n. 111, 392-3; Goodwin-Gill, above n. 121, 196.
141. See, discussion in Hathaway, above n. 111, 393-400.
142. Compare, Summary Conclusions, Article 31 of the 1951 Convention, Expert Roundtable organised by the UNHCR the Graduate Institute of International Studies, Geneva, Switzerland, 8-9 Nov. 2001, [7]: 'In particular, while the relevant terms of Article 31 ("coming directly", "without delay", "penalties", "good cause") must be applied at the national level, full account must always be taken of the circumstances of each individual case if international obligations are to be observed', published in Feller et al. (eds.), above n. 121, at 254-5.
143. See, e.g., a recent piece concerning refugee protection in Indonesia, which is a country though which many travel en route to Australia, S. Taylor and B. Rafferty-Brown, 'Difficult Journeys: Accessing Refugee Protection in Indonesia' (2010) 36 Monash University Law Review 201.
144. Goodwin-Gill, above n. 121, 194.
145. VCLT, art. 31(1) (emphasis added). This approach finds support in the view of the Human Rights Committee in interpreting the term 'penalty' in art. 15(1) of the ICCPR: 'Whether the word "penalty" in art. 15(1) should be interpreted narrowly or widely, and whether it applies to different kinds of penalties, "criminal" and "administrative", under the Covenant, must depend on other factors. Apart from the text of art. 15(1), regard must be had, inter alia, to its object and purpose'. Van Duzen v. Canada, Communication No. 50/1979, UN doc. CCPR/C/15/D/50/1979, 7 Apr. 1982, [10.2].
146. Goodwin-Gill, above n. 121, 195.
147. See, submissions of the UNHCR, P. Mathew, J. McAdam, HREOC, and Ron Merkel, cited in the 2006 Senate Report, above n. 32.
148. UNCHR Submission to the 2006 Senate Inquiry, 22 May 2006, above n. 32, 6-7.
149. See, discussion in Hathaway, above n. 111, 408.
150. As will become apparent in the discussion that follows, art. 26 has been selected as the focal point because of its substantive scope and geographic reach. A claim brought under art. 3 of the Refugee Convention would be more difficult as it is limited to proscribing discrimination on the basis of 'race, religion or country of origin'. That said, there is an argument that the offshore processing regime targets refugee claimants from countries in Australia's immediate vicinity, thereby targeting claimants of a particular 'race, religion or country of origin'.
151. See, J. McAdam, Submission to the 2006 Senate Inquiry, above n. 32, 11.
152. See, Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN doc. A/810, 10 Dec. 1948, (UDHR), arts. 1, 2 and 7.
153. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 Dec. 1966, 993 UNTS 3 (entered into force 3 Jan. 1976) (ICESCR), art. 2(2).
154. See, art. 2.
155. Art. 3 of the Refugee Convention provides that '[t]he Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin'. See also, International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 12 Dec. 1965, 60 UNTS 195 (entered into force 4 Jan. 1969); International Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 Dec. 1979, UNGA Resolution 34/180 (entered into force 3 Sept. 1981); International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (UNGA Res 45/158); International Convention on the Rights of Persons with Disabilities (UNGA Res 61/106).
156. Hathaway, above n. 111, 126.
157. The language threaded throughout the ICCPR speaks of protection being extended to 'everyone' (e.g., arts. 9, 12), 'all individuals' (e.g., art. 2) or 'all persons' (e.g., art. 26). Art. 2(1) requires contracting states to ensure the rights in the Covenant 'to all individuals within its territory and subject to its jurisdiction. .. without distinction of any kind' (emphasis added). This includes access to the protection afforded by art. 26. The Human Rights Committee, in its General Comment 15, has confirmed that, 'as a general rule, each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens', Human Rights Committee, General Comment 15: 'The Position of Aliens Under the Covenant' (1986), UN doc. HRI/GEN/1/Rev.7, 4 Nov. 1986.
158. See also, Human Rights Committee, General Comment 31, above n. 94, [10].
159. See further, J. Pobjoy, 'Treating Like Alike: The Principle of Non-Discrimination as a Tool to Mandate the Equal Protection of Refugee and Beneficiaries of Complementary Protection' (2010) 34 Melbourne University Law Review 181-229.
160. See further, S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 2nd ed., 2005) 679-751.
161. M. Nowak, CCPR Commentary (N. P. Engel, 2nd ed., 2005), 597-634.
162. Indeed, available statistics suggest the contrary. Between 29 July 2008 and 30 June 2009 there were 531 RSAs initiated and 217 completed. Of those RSAs completed, 206 were approved and granted a protection visa and 11 were refused. In contrast, in the same period 22 protection visa applications were lodged by irregular maritime arrivals who arrived on the mainland, and ten were decided. All of these applications were refused at first instance (all 10 applicants lodged a request for review by the Refugee Review Tribunal). DIAC, Annual Report 2008-09 (2009) 96.
163. See, discussion in Part 2.3 above.
164. Vos v. Netherlands, Communication No. 218/1986, UN doc. CCPR/C/66/D/786/1997, 29 July 1999.
165. See, in particular, Human Rights Committee, General Comment 15, above n. 142, 140 [2], and General Comment 31, above n. 94. A number of decisions of the Committee lend support to the proposition that nationality falls within the notion of 'other status'. See, Gueye v. France, Communication No. 196/1985, UN doc. CCPR/C/35/D/196/1985, 3 Apr. 1989, [9.4]-[9.5]. Similar views have been expressed by the Committee on the Elimination of all Forms of Racial Discrimination and the Committee on Economic, Social and Cultural Rights, see, CERD, General Recommendation No. 30, 'Discrimination Against Non-Citizens', UN doc. HRI/Gen/1/Rev.7/Add. 1, 4 May 2005; CESCR, General Comment No. 20, 'Non-Discrimination in Economic, Social and Cultural Rights' (art. 2, para. 2), UN doc. E/C.12/GC/20, 2 July 2009, [30].
166. Human Rights Committee, General Comment 18, 'Non-Discrimination' (1989), UN doc. HRI/GEN/1/Rev.7, 11 Oct. 1989, [13]. This requirement is also manifested in the jurisprudence of the Committee. See, e.g., Broeks v. The Netherlands, Communication No. 191/1985, UN doc. CCPR/C/ OP/2 at 196, 9 Apr. 1987; Sprenger v. The Netherlands, Communication No. 395/1990, UN doc. CCPR/ C/44/D/395/1990, 31 Mar. 1992; Kavanah v. Ireland, Communication No. 819/1998, UN doc. CCPR/C/76/D/1114/2002/Rev.1, 25 Oct. 2002; and, Karakurt v. Austria, Communication No. 965/2000, UN doc. CCPR/C/74/D/965/2000, 4 Apr. 2002.
167. See, Evans, above n. 33. See also, Evans, Smith and O'Connor, above n. 85; Evans et al., above n. 85.
168. Prime Minister Gillard, 'Respecting Fears, Moving Forward with Facts', speech, Lowy Institute, 6 June 2010, reprinted in the Sydney Morning Herald, 6 July 2010
169. See, Protocol Against the Smuggling of Migrants by Land Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, opened for signature 12 Dec. 2000, 2241 UNTS 507 (entered into force 28 Jan. 2004), art. 7.
170. See, K. Koser, 'Responding to Boat Arrivals in Australia: Time for a Reality Check', Lowy Institute for International Policy Analysis (Dec. 2010).
171. For a comprehensive discussion, see, Crock and Ghezelbash, above n. 46.
172. S. Taylor and B Rafferty-Brown, 'Waiting for Life to Begin: the Plight of Asylum Seekers Caught by Australia's Indonesia Solution' (2010) 22 IJRL 558-92.
173. 'Australia needs to put those [resettlement] places on the table in order to get past the distrust it has proved with the "Pacific Solution" and the "Indonesian Solution", not to mention its recent proposal of an "East Timor Solution", and to get to a point where it can commence a dialogue with its neighbours that has some prospect of finally delivering a protection solution for the 3.9 million refugees in the Asia Pacific region, including those in Indonesia'.
174. A similar view has also been taken by the UNHCR which has noted, in relation to Australia's excised territories, that '[h]aving two different determination systems is discriminatory', UNHCR, 'Response of the Office of the United Nations High Commissioner for Refugees to the Senate, Legal and Constitutional Committee Request for Comments', , [15].
175. See also, submissions of the UNHCR in the 2002 Senate Report, above n. 19, [5.35]: 'The introduction of different systems for determination of refugee status for different asylum seekers depending on their location in Australia raises concerns. Having two different determination systems is discriminatory and in UNHCR's view undesirable. If lesser standards relating to procedures or lesser status accorded under these procedures are envisaged due to the nature of arrival of asylum seekers, this would not be in accord with international protection obligations'.
176. Australia remains the only Western democracy without a national human rights instrument, see, Frank Brennan et al., 'National Human Rights Consultation Report' (2009), .
177. The Migration Act effectively incorporates the definition of refugee into s. 36 of the Act (i.e., a person is qualified for a protection visa if they are one to whom Australia owes obligations under the Convention); however, it does not incorporate the remainder of the Convention. Further, while specific obligations from some of the key human rights treaties are incorporated into specific pieces of legislation, there is no general human rights legislation.
178. [61M] (2010) 272 ALR 14
179. Plaintiff S157/2002 v. Commonwealth 211 CLR 476, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
180. It is appropriate to leave, for another day, the question whether a party identified as "an independent contractor" nevertheless may fall with the expression "an officer of the Commonwealth"', M61 (2010) 272 ALR 14, 26 [51]
181. Note that in the oral argument, Justice Gummow really pushed this point, stating clearly that the Minister, in setting up the offshore RSD process, 'has embarked on a matter arising under a treaty, and that is justiciable. It has to be so', Transcript of Proceedings, Plaintiff M61/2010E v. Commonwealth of Australia & Ors; Plaintiff M69 of 2010 v. Commonwealth of Australia & Ors [2010] HCATrans 218 (24 Aug. 2010), 1130. Further, the Solicitor-General for the Commonwealth conceded this point, see, Transcript of Proceedings, Plaintiff M61 & M69 [2010] HCATrans 219 (25 Aug. 2010), 4630.
182. Yet the Constitutional Commission in 1988 noted that there was 'the possibility of a matter arising under a treaty in a manner that is beyond our present conception', cited in L. Zines, Cowen and Zines's Federal Jurisdiction in Australia (The Federation Press, 3rd edn., 2002), 30.
183. [61M] (2010) 272 ALR 14, 32 [73]. The Commonwealth had argued that since both the assessments and the reviews of the assessments were undertaken in exercise of non-statutory executive power under s. 61 of the Constitution, it followed that there was no obligation to afford procedural fairness and 'it mattered not whether those who undertook the inquiries had misunderstood or misapplied the law', ibid., 19 [15].
184. That is, s. 46A, or the alternative, s. 195A discretion.
185. [61M] (2010) 272 ALR 14, 32 [74]. Where it was convenient to the Commonwealth, e.g., where it preferred not to disclose information to the applicant which would normally be required to be disclosed under the rules of procedural fairness, the Manual suggested that what the Migration Act describes as 'non-disclosable' information need not be disclosed, ibid., 24-5 [43]. The plaintiff's counsel in M61 did an excellent job of pointing out this incongruity.
186. S. Maher, 'Offshore option five times dearer', The Australian (Sydney), 8 Jan. 2011.
187. Indeed, an article in The Australian went so far as to claim that 'the High Court has hammered the final nail into its [the offshore processing regime] coffin', see, P. Maley, 'Who's afraid of Christmas Island now?', The Australian (Sydney), 8 Jan. 2011 ('The offshore processing regime for refugees.. .. is dead').
188. It should be noted that, although the Court only issued a declaration (and not an order of mandamus or certiorari), in practice this has the same effect as any other order, see, Roger Douglas, Douglas and Jones's Administrative Law (The Federation Press, 6th edn., 2009), 778. Indeed the High Court noted that, '[t]here being no present threat to remove either plaintiff without a further RSA being undertaken in which the law would be correctly applied and procedural fairness afforded, it is not now necessary to consider granting an injunction', M61 (2010) 272 ALR 14, 17 [8].
189. ABC News Radio, 'Nauru, people smuggler, High Court Decision, Mohammed Haneef, Interview of Chris Bowen with Marius Benson', 23 Nov. 2010.
190. C. Bowen, 'Government Announces Faster, Fairer Refugee Assessment Process', Press Release, 7 Jan. 2011.
191. ABC News Radio, above n. 193. Even post-M61, the Minister still clearly has such discretion, as the High Court emphasised that the offshore entry person 'had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour', M61 (2010) 272 ALR 14, 33 [77].
192. Bowen, above n. 194.
193. DIAC, 'Changes to Refugee Status Determination: Questions and Answers', .
194. Bowen, interview, 'Government response to High Court decision regarding judicial review for asylum seekers who arrive on an offshore excised place, Indonesian and Australian cooperation on people smuggling issues', 7 Jan. 2011, .
195. Bowen, above n. 194.
196. [61M] (2010) 272 ALR 14, 33 [77]
197. Bowen, above n. 194; DIAC, above n. 196. The report of Prof. John McMillan was submitted to the Department of Immigration, 17 May 2011, but has not yet been publicly released, see, Hansard, Senate Legal and Constitutional Affairs Committee, 23 May 2011, 15.
198. [61M] (2010) 272 ALR 14, 28 [59]. Note that in the oral hearing before the High Court in M61, Justice Gummow was particularly concerned that the so-called non-statutory process might constitute a 'black hole', see, Transcript of Proceedings, Plaintiff M61 & M69 [2010] HCATrans 218 (24 Aug. 2010), 3075. For further background on the historical battle between the High Court and the parliament to restrict judicial review for asylum seekers, see, Kneebone, above n. 41, 178-85.
199. Gillard, above n. 150.
200. For an overview of the relevant (failed) legislation, see, S. Harris Rimmer, 'Migration Amendment (Designated Unauthorised Arrivals) Bill 2006', Bills Digest No. 138, Parliamentary Library, 22 May 2006.
201. Arrangement Between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, 25 July 2011, Clause 1, [2], on file with authors (the Arrangement)
202. See, Taylor and Rafferty-Brown, above n. 155.
203. The Arrangement, above n. 207 at Clause 8 [1].
204. Migration Act, s. 198A(1). The Arrangement with Malaysia envisages that force may be necessary, see, Annex A, Operational Guidelines to Support Transfers and Resettlement (on file with authors), [1.4.1(d)].
205. Migration Act, s. 198A(3).
206. See, Migration Act, s. 198A(3)(iii) (pending their voluntary repatriation to their country of origin or resettlement in another country).
207. This appears to have been contemplated by the government according to recent press reports. In an article in The Australian, it was stated that: 'Under complicated arrangements proposed by Canberra, asylum seekers who made directly for the East Timor regional processing centre could be transferred back to transit countries as part of a basic queue system'.
208. Maley and P. Alford, 'E Timor swap could mean asylum queue', The Australian (Sydney), 3 Feb. 2011.
209. The Arrangement, above n. 207, Clause 6.
210. Plaintiff M70/2011 v. Minister for Immigration and Citizenship & Anor. An injunction was granted in this matter on 7 Aug. 2011, and extended on 8 Aug. 2011, to prevent the removal of asylum seekers to Malaysia pending the full court hearing on 22 Aug. 2011, see, .
211. On 31 Aug. 2011, the High Court declared that the declaration made by the Minister, that Malaysia was a country to which asylum seekers could be transferred, was made without power and was invalid: Plaintiff M70/2011 v. Minister for Immigration and Citizenship [2011] HCA 32. The government has subsequently announced an intention to amend the Migration Act to facilitate the Malaysia agreement, see, Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011.
212. P1/2003 v. Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029, [49], but see, Plaintiff P1/2003 v. Ruddock [2007] FCA 65, [70], where Nicholson J stated that it 'is still arguable that, even if s. 198A is valid, its exercise in this particular case was not valid (because, e.g., the defendant needed to be satisfied of the pre-conditions)'.
213. The decision of Canada's Federal Court of Appeal that a similarly worded provision did not permit the Court to assess whether there was actual compliance with the listed factors (including art. 33 of the Refugee Convention) but, rather, only whether the Governor-in-Council had considered the factors set out in the Act in deciding to enter into a Safe Third Country Agreement with the United States, would tend to support such a reading of s. 198A(3), see, R v. Canadian Council for Refugees (2008) FCA
214. This concerned s. 102 of the Immigration and Refuge Protection Act, SC 2001 27, which provides that the Governor in Council may make regulations that designate 'countries that comply with Article 33 of the Refugee Convention' for the purpose of 'sharing responsibility with governments of foreign states'.
215. See generally, M. Foster, 'Responsibility Sharing or Shifting? "Safe" Third Countries and International Law' (2008) 25 Refuge 64-78.
216. Similarly, the other potential bases of jurisdiction under s. 75 may not be engaged if Australia is not involved in the RSD process. Section 75(i) could be a possibility, particularly if the government entered into a further treaty to establish a regional scheme, but it is very difficult to hypothesise as to the prospects of this in light of the history of 75(i) and in any event the Arrangement with Malaysia is 'not legally binding on the Participants', Clause 16. It is worth noting that the High Court described the arrangements in place under the Pacific Strategy as part of the background and context to the processing scheme on Christmas Island, but concluded '[i]t is not necessary to examine further the operation of the arrangements that were made to effect the Pacific Strategy', M61 (2010) 272 ALR 14, 23 [34]. There was at least one claim filed in the High Court from those detained on Nauru, but it was settled by the Commonwealth, see, Francis, above n. 29, 304.
217. The Arrangement, above n. 207, Clause 11 [2].
218. However, this is complicated by the fact that such obligations have not yet been codified into the Migration Act, see, Complementary Protection Bill (Cth), above n. 80.
219. For a similar reading of M61 (2010) 272 ALR 14 on this point, see, M. Crock and D. Ghezlbash, 'Due Process and Rule of Law as Human Rights: The High Court and the "Offshore" Processing of Asylum Seekers' (2011) 18 Australian Journal of Administrative Law 101 at 108.
220. See, e.g., s. 198B, which states that '(1) An officer may, for a temporary purpose, bring a transitory person (defined to include offshore entry person) to Australia from a country or place outside Australia'. Also, under the Pacific Solution, persons could apply for certain classes of visa.
221. Further, even if the statutory anchor could be found, it would be necessary to identify what was the right, interest or legitimate expectation at stake which would engage application of the rules of procedural fairness. While it was the deprivation of liberty in M61, it is worth noting that s. 198A(4) states that '[a]n offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).'
222. In June 2011 it was reported that Nauru signed the Convention (see, K. Needham, 'Nauru signs UN refugee convention', The Age, 18 June 2011).
223. Under Nauru's Immigration Act 1999 the 'Principal Immigration Officer' may grant a noncitizen a permit to be known as a visa to travel to, enter and remain in Nauru (see, s. 9(1)(a) and (b)). However, the 'classes, terms, conditions and fees of visas shall be as prescribed' (s. 9(2)). While the Immigration Regulations 2000 permit the grant of a 'special purpose visa' to 'a person whom the Principal Immigration Officer considers should be regarded as a refugee' (s. 8 (1)(h)), there is no criteria set out as to how such an assessment is to be made. Nor is there any specific procedure established. Under the Memorandum of Understanding between the Commonwealth of Australia and the Nauru government signed on 9 Dec. 2002, Australia was obliged 'to ensure that each person will be processed and have departed Nauru within as short a time as is reasonably possibly, and that no persons will be left behind in Nauru', see, Ruhani v. Director of Police (No. 2) (2005) 222 CLR 580, 584 [9].
224. 'East Timor would be responsible for the legal processing and resettlement of asylum seekers trying to reach Australia, using its law', E. Jensen, 'Revealed: Australia's asylum plans', Sydney Morning Herald (Sydney), 2 Feb. 2011 (emphasis added).
225. The Arrangement, above n. 207, Clause 10 [2].
226. There is a strong case that art. 33 of the Refugee Convention applies to action undertaken extraterritorially, where a state party exercises jurisdiction, see, e.g., Hathaway, above n. 111.
227. See also, M. Foster, 'Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State' (2007) 28(2) Michigan Journal of International Law 223 at 250-61.
228. NHCR, 'Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol', 26 Jan. 2007, .
229. In a different context, the Committee Against Torture held in 2008 that Spain's obligation of non-refoulement under the CAT was triggered when the Spanish Coast Guard rescued a vessel in international waters off the coast of West Africa
230. Wouters and M. Den Heijer, 'The Marine I Case: a Comment' (2010) 22 IJRL 1-19.
231. See, J. C. Hathaway et al., 'Michigan Guidelines on Protection Elsewhere' (2007) 28 Michigan Journal of International Law 209-21.
232. M.S.S. v. Belgium and Greece, Application No. 30696/09, European Court of Human Rights, Grand Chamber (21 Jan. 2011), [342] (M.S.S.).
233. For the arguments on this issue, see, Foster, above n. 230, 238-43.
234. M.S.S., above n. 232. For further domestic and regional jurisprudential authority, see, Foster, above n. 230, 244-50, 278-83.
235. Timor-Leste acceded to both the Convention and the Protocol on 7 May 2003, and .
236. See, Immigration and Asylum Act (Timor Leste) Law 9/2003 of 15 Oct. 2003, .
237. Note that this appears to be under review, see, Draft Revision of the Immigration and Asylum Act, Consultation Draft for Distribution During the Public Consultation Workshop Sessions
238. For information about this process, see, .
239. M.S.S., above n. 232, [359].
240. See, art. 97 (1). Further, the Minister has only 48 hours to issue a final decision, see, art. 97 (2). Note, however, that art. 104 (1) provides that a denial of the request for asylum can be appealed to the Court of Appeal.
241. An analysis of East Timor's current Immigration and Asylum Act raises issues regarding the ability of asylum seekers to effectively access any RSD system given that the legislation requires that if an application is not submitted within 72 hours the request is considered inadmissible. See, art. 92(1). Art. 94(1) provides that a request is considered admissible if '(d) The request is presented, unjustifiably, beyond the deadline described in Article 92'. It is possible therefore that a person may argue that any delay was justified; yet it is impossible to know how this would be interpreted or applied. Further a request for asylum is considered inadmissible if it is made by an asylum seeker who is 'an ordinary resident in a country which qualifies as a safe country or as a third country of shelter', art. 94 (1)(b).
242. In terms of ensuring an appropriate interpretation of both the inclusion and exclusion components of the definition of 'refugee' in art. 1A(2) of the Convention, it appears that an overly broad application of the exclusion clauses is embodied in the current East Timor legislation which could well result in the exclusion of persons who have a right to be granted refugee status under the Convention. See, art. 86(1)(1), which states that asylum cannot be granted to 'those who have committed acts that go against the fundamental interests or sovereignty of the DRTL'. This appears to go well beyond either art. 1F or art. 33(2) of the Convention. Further, art. 86(1)© excludes 'Those who have committed common-law felonies punishable by incarceration for more than 3 years'. This may exclude a larger category than is permitted under art. 1F(b) of the Convention. Finally, art. 86(2) further provides that 'Asylum can be denied if granting it results in a proven risk or evident threat to internal or external security, or to public order', which appears to travel beyond the exclusion permitted in art. 33(2) of the Refugee Convention. For a similar finding in respect of the US legislation, see, R v. Canadian Council for Refugees (2007) FC 1262 at [191]. Finally, there is also provision in the East Timor legislation for a recognised refugee to lose the right to asylum if he or she engages in illegal political acts - an exclusion not clearly authorised by the terms of the Refugee Convention.
243. As explained by the UNHCR office in Malaysia: 'As there are currently no legislative or administrative provisions in place for dealing with the situation of asylum-seekers or refugees in the country, UNHCR conducts all activities related to the reception, registration, documentation and status determination of asylum-seekers and refugees', 2011 UNHCR country operations profile - Malaysia, .
244. See, e.g., M. Kagan, 'The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination' (2006) 18 IJRL 1.
245. V. Türk and E. Eyster, 'Strengthening Accountability in UNHCR' (2010) 22 IJRL 159 at 165.
246. In the particular context of Malaysia, the agency acknowledges that it is 'difficult to fulfil its mandate' in Malaysia, UNHCR, above n. 242.
247. As the UNHCR office in Malaysia explains, '[b]y law, refugees are not differentiated from undocumented migrants. They are therefore vulnerable to arrest for immigration offences and may be subject to detention, prosecution, whipping and deportation', UNHCR, ibid.
248. The treatment outlined above, ibid, raises concerns that Australia would also be in violation of its obligation not to 'extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant [ICCPR]', Human Rights Committee, General Comment No. 31, above n. 94 at [12].
249. The Arrangement, above n. 207, Clause 10 [2].
250. See, UNHCR, above n. 245.
251. The Arrangement, above n. 207, Clause 10 [3].
252. Operational Guidelines, above n. 212, [3.0].
253. This article applies to 'refugees' regardless of their lawful status; hence applies immediately even prior to status determination, see, Hathaway, above n. 111, 584-613.
254. Operational Guidelines, above n. 212, [3.3]
255. As the House of Lords has said, a state is 'under a duty to inform itself of the facts and monitor the decisions made by a third country in order to satisfy itself that the third country will not send the applicant to another country otherwise than in a/c with the Convention', R (ex parte Yogathas) v. Secretary of State for the Home Department [2003] 1 AC 920 at [9] (per Lord Bingham). The House of Lords further held that although an 'accelerated procedure' to determine legality of transfer was acceptable, the need for efficiency cannot obviate the need for a court to subject the decision to transfer a refugee to a 'rigorous examination' (at [74] per Lord Hutton). Lord Hope stated that the courts are required to subject a decision to transfer to 'anxious scrutiny', at [58]. This is also supported by the European Court of Human Rights in M.S.S., above n. 232, where it held that 'The Court is also of the opinion that the diplomatic assurances given by Greece to the Belgian authorities did not amount to a sufficient guarantee', [354]. One of the factors taken into account was that 'the agreement document is worded in stereotyped terms and contains no guarantee concerning the applicant in person', [354].
256. The Arrangement, above n. 207, Clause 8 [2].
257. Human Rights Committee, Concluding Observations, Sweden, [79], UN doc. A/57/40, vol I, 2002.
258. The Joint Committee has the day to day supervisory responsibilities as is made clear in the Arrangement, see, above n, 207, Clause 13, [1]-[2]
259. The Arrangement, above n. 207, Clause 13, [3].
260. Gillard, above n. 150.
261. House of Lords European Union Committee, 'Handling EU Asylum Claims: New Approaches Examined, Report with Evidence' (11th report of Session 2003-04, 30 Apr. 2004), 81.
262. As the UNHCR has recently noted, 'Improving asylum procedures -- including within the EU -- remains of critical importance, as asylum outcomes lack consistency from country to country. The underlying assumption of the Common European Asylum System, including the Dublin Regulation, is that national asylum systems afford the same prospects and levels of protection. However, this is not yet the case', UNHCR, Regional Operations Profile - Europe, .
263. The regime set out in the Dublin Regulation has been coming under increasing pressure and scrutiny in recent years, particularly in relation to transfers to Greece. In M.S.S v. Belgium and Greece, Application No. 30696/09, European Court of Human Rights, Grand Chamber (21 Jan. 2011), the European Court of Human Rights noted that since 2006 a large number of reports have been published by national, international and non-governmental organisations 'deploring the conditions of reception of asylum seekers in Greece', [159]-[160]. Indeed, since 2008, a number of European States have suspended removals to Greece (for a good overview, see, UNHCR, Information Note on National Practice in the Application of Article 3(2) of the Dublin II Regulation in Particular in the Context of Intended Transfers to Greece (16 June 2010) and the European Commission has commenced infraction proceedings against Greece for failing to comply with its obligations under the Dublin Regulation, see, Secretary of State for the Home Department v. Nasseri [2009] UKHL 23, [32] (Nasseri). The decision of the Court in M.S.S., above n. 232, that Belgium was in violation of several of its obligations under the European Convention when it transferred asylum seekers to Greece, signals that major reform is necessary.
264. Bjarte Vandvik, ECRE Secretary General, 'Europe Must Seriously Rethink the Dublin System and Replace it with a Regime that Ensures the Rights of Asylum Seekers are Respected', .
265. As the Council of Europe's Parliamentary Assembly recently acknowledged, 'while seeking an effective, co-ordinated system, Europe has ended up with a system, the implementation of which has given rise to infringements of the 1951 Refugee Convention', Council of Europe Parliamentary Assembly, 'Asylum seekers and refugees: sharing responsibilities in Europe', Doc. 12630, 6 June 2011 at [31].
266. As the UNHCR has noted, 'The Asia-Pacific region has a low level of accession to the 1951 Refugee Convention, and implementation of their Convention obligations remains a challenge for some signatory States', see, .
267. As Davies notes 'The majority of Asian states reject the Convention and Protocol as instruments framed in response to Europe's displaced population at the end of the Second World War. They consider that these instruments are Eurocentric and therefore inappropriate for dealing with Asian refugee. .. Only a small number of Asian states have acceded to the international refugee law instruments'. She goes on to observe that 'A further distinctive element of Asia's relationship with international refugee law is that there have been no concerted attempts to compensate for non-accession by introducing regional instruments that would oblige states to respond uniformly to refugee crises'.
268. S.E. Davies, 'The Asian Rejection?: International Refugee Law in Asia' (2006) 52 Australian Journal of Politics & History 562-75, 563.
269. See, A. Durbach, C. Renshaw and A. Byrnes, 'A Tongue but no Teeth?: The Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region' (2009) 31 Sydney Law Review 211-38.
270. This is an important limitation of the Asia-Pacific region because the existence of a regional human rights treaty and the machinery to enforce it via the European Court of Human Rights has been essential to upholding the rights of asylum seekers subject to transfer under the Dublin system, see, e.g., T.I. v. United Kingdom, Application No. 43844/98, European Court of Human Rights (7 Mar. 2000) and M.S.S., above n. 232.
271. By contrast, in the EU, the European Commission is responsible for enforcing the obligations of Member States under the Dublin II regulation to process asylum applications which are their responsibility and to give effect to the asylum directives (Nasseri, above n. 263, [41]). Further, the European Commission may lodge proceedings against a state which fails to do so in the European Court of Justice, which it has done in the case of Greece (decision pending as of writing).
272. In the words of the House of Lords at [81]. In Nasseri, ibid., [49], Lord Scott noted that it is important to 'bear in mind that every Member State of the EU is, and has to be, a signatory to the European Convention on Human Rights'.
273. House of Lords European Union Committee, above n. 244 [75].
274. For an overview of the proposals by the UK, which were supported by Denmark and the Netherlands and led to counterproposals by the UNHCR and the European Commission, see, S. Morgades, 'The Externalization of the Asylum Function in the European Union', GRITIM Working Paper Series No. 4, Universitat Pompeu Fabra, Spring 2010, 25-8.
275. G. Noll, 'Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones' (2003) 5 European Journal of Migration and Law 303-41.
276. House of Lords European Union Committee, above n. 244, [97].