Kenny, Mary Anne --- "Terrorism and Exclusion Under the Refugee Convention" [2003] ALRCRefJl 8; (2003) 82 Australian Law Reform Commission Reform Journal 37

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Reform Issue 82 Autumn 2003

This article appeared on pages 37 – 42 & 71 of the original journal.

Terrorism & exclusion under the Refugee Convention

By Mary Anne Kenny*

Recent attacks on the World Trade Center and in Bali intensified the already restrictive climate for refugees and asylum seekers in Australia and worldwide. In Australia political leaders have stated that there could be terrorists or persons otherwise posing a threat to national security amongst those seeking asylum in Australia.

Shortly after the attack on 11 September 2001, the United Nations Security Council passed Resolution 1373 which made explicit reference to the need to safeguard the system of international refugee protection from terrorists, calling upon states to:

(3)(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts ...

The United Nations High Commissioner for Refugees (UNHCR) has urged governments to fight against an increasing trend to view refugees as ‘criminals’ and to make unwarranted links between them and terrorism. The irony is that many refugees are themselves escaping violence, including terrorism, and are not likely to be perpetrators of such acts.

There is no denying that a state has an interest in maintaining control over the arrival of individuals in order to secure the safety of its citizens, but this must also be balanced with responsibilities under international refugee law. In fact, these contrasting concerns are already covered in the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (referred to collectively as the Refugee Convention).

Refugee Convention

The Refugee Convention (Article 31) prohibits the return or expulsion of asylum seekers to another country where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. This prohibition against ‘refoulment’ is the touchstone of the international protection system. Further, the Refugee Convention (Articles 31-33) states that any person claiming asylum may not ordinarily be sent away without careful investigation of their need for protection.

Persons falling within Article 1F of the Refugee Convention are automatically excluded from applying for protection where 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.

Exclusion is the most extreme sanction of international refugee law. The UNHCR has cautioned that countries should interpret the exclusion clauses restrictively and resort to them only where there is clear and compelling evidence of individual responsibility for a serious crime specified under the exclusion clauses.¹

Article 1F of the Refugee Convention is complimented by Article 33(2), which authorises a government to refuse to protect a refugee where there are ‘reasonable grounds’ for regarding the person as a risk to national security or a danger to the community.

Assessment processes under Australian law

If a person suspected of promoting or committing acts of terrorism arrives in Australian territory and claims asylum, how could Australian authorities rely on Article 1F or Article 33(2) to exclude him or her?

This article is restricted to a consideration of those persons who arrive on the Australian mainland and are able to apply for asylum. Recently passed legislation has excised parts of the Australian territories from the ‘migration zone’, preventing persons arriving in those territories from applying for asylum under the Migration Act 1958 (Cth) (the Migration Act).

Where a person has arrived in the Australian migration zone, and the Minister is satisfied Australia has protection obligations to them under the Refugee Convention, the person may be granted a Protection Visa.

Assessments for Protection Visas are made at the first instance by officers from the Department of Immigration Multicultural and Indigenous Affairs (DIMIA) acting as a delegate of the Minister for Immigration Multicultural and Indigenous Affairs. As part of that assessment the DIMIA officer will consider whether the applicant should be excluded from protection pursuant to Article 1F. The Administrative Appeals Tribunal (AAT), constituted by a presidential member sitting alone, has jurisdiction to review decisions to exclude a person from protection under Article 1F.

Defining ‘terrorism’

What kind of ‘terrorist act’ would be sufficient to exclude a person from protection under Article 1F?

There is no accepted international definition of ‘terrorism’. International agreement on such a definition has stalled negotiation on a comprehensive convention on international terrorism.² Many nations, including Australia, have moved to implement their own definition at a national legislative level.³

Terrorism is not specifically mentioned in the Refugee Convention. Nevertheless, asylum seekers could be excluded under Article 1F(a) if they commit an act considered to be ‘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’.

The AAT has decided in a number of cases that a ‘crime against humanity’ need not be linked to any conflict, national or international.⁴ According to the Rome Statute of the International Criminal Court, a crime against humanity may include murder, severe deprivation of physical liberty, torture, rape, and other inhumane acts of similar character if ‘committed as part of a widespread or systematic attack directed against any civilian population’.⁵ The AAT has also recognised that an individual act of torture, for example, during interrogation and detention of a person if committed during a widespread attack against a civilian population, can be a crime against humanity.⁶

Article 1F(c) excludes the granting of international protection to those who may have committed acts ‘contrary to the purposes and principles of the United Nations’. There are no international instruments that clearly define ‘acts contrary to the purposes and principles of the United Nations’. The traditional view has been that this provision would only apply to those acting on behalf of a state. However Professor Goodwin-Gill has argued that Article 1F(c) is potentially very wide:

[I]t remains open (in that there is no jurisprudence immediately on point), whether exclusion must be linked to the activities of a State or of State organisations, or whether it also extends to individuals acting on behalf of unrecognised entities, belligerent groups, quasi-States, or on their own.⁷

Security Council Resolution 1373 states that acts of international terrorism are contrary to the purposes and principles of the UN Charter. Some commentators have argued that this Resolution may lead to a significant expansion in the use of Article 1F(a) to exclude refugees accused of terrorism.⁸

Political crimes and terrorism

The exclusion clause which has traditionally been of most relevance in Australian practice is Article 1F(b), which bars from the protection of international refugee law those who have committed ‘serious non-political crimes’ outside the country of asylum.

There has been much debate as to what constitutes a ‘non-political crime.’ Terrorist activity is frequently described as politically motivated violence, and a central objective of the Refugee Convention is to provide protection to those persecuted on account of their political activities. However, Security Council Resolution 1373 requested states to:

3(g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists

The meaning of ‘non-political crimes’ in the context of Article 1F(b) was considered by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Singh.⁹ The respondent was a Sikh of Indian nationality who had been an active member of the Khalistan Liberation Force (KLF), a militant pro-Sikh organisation whose aim is to create an independent Sikh State of Khalistan centred on the Punjab. He had been involved in the killing of a police officer. In this case the killing might have been an act of revenge, but was also done in the course of membership of a separatist political movement and may have been meant, in part, to induce a change in government policies. One of the issues before the Court was whether such an act, where there may be mixed motives, could constitute a ‘political crime’.

In the course of the judgments in Singh, some comments were made about whether terrorist activities could constitute a ‘political crime’. Chief Justice Gleeson referred to the decision of Lord Lloyd of Berwick in T v Home Secretary:

A crime is a political crime for the purposes of article 1F(b) of the Geneva [Refugee] Convention if, and only if (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public.¹⁰

For the reasons given by Lord Lloyd Berwick, Gleeson CJ stated that terrorist activities are not political crimes.

In Singh, Gaudron J said:

One reason why there is a tendency to exclude “terrorist” activities and the like from the notion of “a political crime” is that the latter notion is incapable of definition by reference to the criminal acts involved in such a crime. Such acts necessarily vary from place to place and time to time with changing political circumstances and changing technologies. Thus, it is possible to define “a political crime” only by reference to its object or purpose. A political crime is simply a crime which has a political object or purpose.

Her Honour went on to discuss the connection between the crime and the political aims of those involved in its commission. She referred to the concept of ‘proportionality’ as ‘a useful indicator of purpose’:

Actions which are either unnecessary or disproportionate to the political objectives which are said to justify them are, perhaps, usefully described as “terrorist” activities. But for the purposes of Article 1F(b), that description is not, of itself, determinative. The issue is whether the actions in question were undertaken for a political purpose, in the sense that that purpose was a significant purpose.

As a result of issues raised in the Singh case, Parliament passed legislation inserting a new section 91T in the Migration Act to define what constitutes a ‘non-political crime’.¹¹ It provides that a reference to a ‘non-political crime’ in Article 1F(b) has effect as if it were a reference to a crime where the person’s motives for committing the crime were ‘wholly or mainly non-political in nature’.

This amendment was criticised by the Human Rights and Equal Opportunity Commission:

Proposed section 91T extends the meaning of non-political crime under Article 1F of the Convention to a situation where the motives of the individual “for committing the crime were wholly or mainly non-political in nature”.

Article 1F already applies to the most serious of crimes (war crimes, common crimes, acts contrary to the purpose and principles of the United Nations). Moreover, the UNHCR Handbook, noting the grave consequences facing someone risking persecution, states that interpretation of these exclusion clauses must be restrictive. The Commission recommends deletion of this provision unless clearer grounds or reasons are articulated as to why it is required and why existing safeguards of exclusion on character or security grounds are insufficient.¹²

Applying the law in Australia

Section 91T and the test set out in Singh were recently considered in an AAT decision SRLLL and Minister for Immigration Multicultural and Indigenous Affairs.¹³ The applicant was an Indian national who claimed to be involved in the Sikh militant movement, the Bhindrawale Tiger Force (BTF). The applicant was initially refused a protection visa and appealed to the Refugee Review Tribunal (RRT). During the course of giving evidence to the RRT the applicant said he was responsible for the death of three Punjabi police officers in connection with his BTF activities. The RRT remitted the matter to DIMIA for reconsideration, including consideration as to whether the applicant was excluded from the protection afforded by the Refugee Convention by reason of Article 1F. He was excluded, and appealed the decision to the AAT. The AAT found that the BTF engaged in violence in pursuing their cause, including murder and attacks on civilians.

At the hearing before the AAT the applicant retracted the admissions he had made at the RRT and denied being involved in the killing of the police officers. The AAT did not accept his retraction and found that he had committed the crimes. When looking at the motive for the crimes, the applicant had given evidence that he had killed the first police officer as an act of revenge, but the second two were killed because they were ‘corrupt’. Deputy President Handley concluded:

If the Applicant’s motives were those of establishing a separate Sikh state and securing rights for Sikhs as a group, then these were clearly political motives. However, if his motives were retribution or the elimination of corrupt officers, then they were less clearly political. Moreover, are terrorist killings of this kind unnecessary or “disproportionate” to the political objectives, as Gaudron J’s judgment in Singh (supra) suggests they might be? On balance, the Tribunal’s view is that the killing of three police officers is unnecessary or disproportionate to any political objectives and, therefore, the paragraph (b) exclusion should apply to the Applicant.

Deputy President Handley went further and found that the applicant was also excluded pursuant to Article 1F(c):

Turning lastly to paragraph (c) and whether the Applicant “has been guilty of acts contrary to the purposes and principles of the United Nations”, in the Tribunal’s view, there is strong evidence that the Applicant committed acts of terrorism by his involvement in the murder of three police officers. The Tribunal considers it reasonable to rely on paragraph 5 of Security Resolution 1373 (2001), set out above, as a statement that terrorist acts are contrary to the purposes and principles of the United Nations, so that the paragraph (c) exclusion also applies to the Applicant.

Rejection due to security interests or character

Presuming the applicant for a Protection Visa is not excluded under Article 1F, he or she must also meet certain public interest criteria and the Minister must be satisfied that the grant of the visa is in the national interest. The public interest criteria set out in Schedule 4, 4002 of the Migration Regulations 1994 (Cth) requires that the applicant ‘is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security’. That assessment is done by the Australian Security and Intelligence Organisation (ASIO).¹⁴

Decisions relying on an adverse assessment made by ASIO are problematic in that neither the applicant nor the AAT is entitled to obtain material on which adverse assessments are made.¹⁵ This lack of access to adverse information has been criticised as it denies an applicant the ability to have any meaningful opportunity to present a case against a visa refusal.¹⁶

Any applicant for a Protection Visa must also meet certain character requirements. If the Minister (or his or her delegate) is satisfied that the applicant does not meet the good character requirement, the Migration Act provides a power to refuse to grant a visa and to cancel a visa that has already been granted. Section 501(3) gives the Minister a power that may only be exercised by the Minister personally to refuse or cancel a visa on character grounds if the Minister thinks it is in the national interest to do so. A decision made by the Minister personally is not reviewable by the RRT nor the AAT. Limited review is available in the courts.

Under this power a person suspected of presenting a national security risk may be refused a Protection Visa in exercise of the character power, rather than in explicit reliance on Articles 1F, 33(2) or public interest criterion 4002.

Conclusion

It is important to acknowledge that states have a legitimate security interest in ensuring that terrorists and other criminals do not take advantage of the system of international protection. However, it is vital that any measures taken do not undermine the very system itself. Australia is reacting largely in response to overseas events. Any possible threat to Australia is largely unknown, and it can be argued that such threats are unlikely to come from those genuinely seeking asylum.

As demonstrated in this article, current provisions within the Refugee Convention provide Australian authorities with the tools to ensure that their security interests are reconciled with the interests of those fleeing persecution and terror. However, there is real concern that, using certain provisions of the Migration Act, we may exclude asylum seekers from protection on assessments made supposedly in the national interest that do not allow for proper scrutiny or challenge. This may mean a person could be removed from Australia in breach of our obligations under the Refugee Convention.

* Mary Anne Kenny is a Senior Lecturer in Law at Murdoch University. She is the Director of the School of Law’s legal clinic. She is a practising solicitor and registered migration agent.

Endnotes

1. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, (reedited, 1992), para 147-163.

2. Note that there are currently twelve Conventions which address such different forms of terrorist threat as airline and maritime safety, the use of plastic explosives, the safety of diplomatic personnel and the taking of hostages.

3. Criminal Code Act 1995 (Cth) s 100.1 defines ‘terrorist act’ as an act committed for a political, religious or ideological purpose designed to intimidate the public with regard to its security and intended to cause serious damage to persons, property or infrastructure.

4. W97/164 and MIMA [1998] AATA 618, para 59-62; N96/1441 and MIMA (AAT 12977, 11/7/98), para 73; W98/45 v MIMA [1998] AATA 948, para 48.

5. Rome Statute of the International Criminal Court, art 7(1). See also Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501, Toohey J at 669 and Deane J at 596.

6. N96/1441 and MIMA, AAT 12977, 11/7/98, para 59.

7. G Goodwin-Gill, The Refugee in International Law (2nd ed, 1996), Oxford University Press, New York, 113.

8. M. Zard, ‘Exclusion,Terrorism and the Refugee Convention’, (2002) Forced Migration Review 32.

9. [2002] HCA 7; (2002) 186 ALR 393.

10. T v Home Secretary [1996] 2 AC 742, 786-787, cited in Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 186 ALR 393, 399.

11. Migration Legislation Amendment Act (No 6) 2001 (Cth).

12. Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Committee inquiry into Migration Legislation Amendment Bill (No 6) 2001.

13. [2002] AATA 795, 12 September 2002.

14. In 2001-2002, ASIO issued 2,281 security assessments in relation to unauthorised arrivals. The majority of unauthorised arrivals were from Iraq, Afghanistan or Iran. No prejudicial assessments were issued. In 2000-2001 there was only one application for a Protection Visa where an adverse assessment was made. See ASIO, Report to Parliament 2001–2002, 24 and ASIO, Report to Parliament 2000–2001, 22.

15. See, eg, Director General Security v Nashmy Obed Sultan & Anor [1998] FCA 1548; (1998) 90 FCR 334; Kaddari v Minister for Immigration & Multicultural Affairs [2000] FCA 659; (2000) 98 FCR 597.

16. For a detailed analysis see S Taylor, ‘Guarding the Enemy from Oppression: Asylum-Seeker Rights Post-September 11’[2002] MelbULawRw 21; , (2002) 26(2) Melbourne University Law Review 396.