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Australian Journal of Human Rights |
The rights of strangers: refugees, citizenship and nationality
Susan Kneebone*
In this paper I argue that the Australian courts have given the non-refoulement obligation in art 33 of the Geneva Refugee Convention 1951 (the Convention) a minimalist interpretation which fails to take account of the underlying principle requiring states to provide ‘effective nationality’ to asylum seekers. I describe how nationality is used as an exclusive rather than inclusive concept in the interpretation of the Convention. This interpretation sanctions the use of a safe third country principle and the use of temporary protection for asylum seekers. The effect of this is that the status of many asylum seekers is in limbo. I critique a line of cases including Minister for Immigration v Thiyagarajah, that have arisen from interpretation of art 1E of the Convention to demonstrate my argument.
‘Our lands are girt by sea . . . ’
It is sometimes said that the non- refoulement principle contained in art 33, prohibiting return to a country where persecution would continue, is the underlying basis of the protection provided by the Convention.1 In Minister for Immigration v Al-Sallal (1999), for example, the Full Court of the Federal Court said: ‘Article 33(1) is, so to speak, the engine room of the Convention’ (at 559).
In that case, the applicant was a stateless Bedouin born in Kuwait who had spent five years under false documents in Iraq and had then lived in Jordan for two years before he fled to Australia with his family, and sought a protection visa on the basis of his refugee status. He claimed that he feared persecution in both Kuwait and Iraq. He argued that as Jordan was not a party to the Convention, there was no guarantee he would not be ‘refouled’ to Kuwait, or to Iraq. However, the Court decided that, as the applicant had effective protection in a third country (Jordan), he was not entitled to a protection visa.
This is one of a large number of cases in which the Australian courts have applied the idea of ‘effective protection’ in a ‘safe third country’ and the non-refoulement principle to asylum seekers, denying them protection visas in Australia. The circumstances of the cases vary. Many involve Iraqi nationals who have fled to Syria or Jordan to escape persecution, but who have found that the risk of persecution and refoulement continues, due, in some instances, to their legal twilight status in those countries (for example, Al-Rahal v Minister for Immigration (2001)) and, in others, to continued persecution in the country of refuge (for example, Gnanapiragasam v Minister for Immigration (1998)).2 They have then made a ‘secondary movement’ to Australia and sought refugee status. I argue that the effect of these decisions is to create a large number of asylum seekers whose status is effectively ‘in limbo’ and to sanction the idea that these people can be left without an ‘effective nationality’.
My argument is that there is another very important idea underlying the refugee definition,3 which I describe as a principle of ‘effective nationality’. This implies a positive obligation to protect those who have lost the protection from persecution of their country of nationality, in a way consistent with human rights. The non- refoulement principle, by contrast, is being applied to allow refugees to be sent back to so called ‘safe third countries’ where their rights and existence are precarious in the extreme. This endorses a very minimalist interpretation of the rights and obligations in the Convention. For example, the policy of the Australian Government to provide mainly temporary protection to ‘secondary movers’ since the new regime of visas introduced in 1999 also leaves asylum seekers in limbo (for example, the hierarchy of visas introduced by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth)). Thus, rather than providing ‘durable solutions’, the Convention is being interpreted to create a new class of stateless people to add to the grim global picture of the ‘refugee problem’.
The Al-Sallal group of cases led from a decision on art 1E of the Convention, the ‘defacto nationality’ exception. Article 1E essentially provides that if an asylum seeker has ‘the rights and obligations which are attached to the possession of the nationality of [the third] country’ in which he or she resides, he or she is not entitled to claim further protection under the Convention. It is the clearest example of the principle of ‘effective nationality’. For this reason I decided to examine how the concept of nationality affects the way that the Australian Government and the courts interpret the protection obligations under the Convention.
In this paper I analyse the idea of nationality and show how, in the interpretation of the Convention, it is used as an exclusionary concept, rather than as an inclusive one of effective nationality. I demonstrate that, in this context, the concepts of nationality and ‘citizenship’ are collapsed, and that refugees are regarded both legally and morally as ‘non-citizens’, and as such are outsiders of our legal and value systems. This characterisation enables the Australian Government to discriminate against refugees and to justify their policy of ‘border control’.
I consider first the significance of nationality in the refugee context for defining the rights and obligations owed to asylum seekers. I then demonstrate how the idea of nationality or citizenship is used negatively to identify asylum seekers. I follow this with a discussion of the Australian case law and legislation which has evolved from interpretation of art 1E. I conclude with some observations about how a concept of ‘effective nationality’ can guide the implementation of protection obligations under the Convention.
My first task is to identify the textual significance of citizenship and nationality under the Convention, which defines (in art 1A(2)) a refugee as:
any person who ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country ...
Under this definition, ‘nationality’ in the first instance is employed to state a ground of persecution, and then used to state that lack of protection of a country of nationality is a precondition for refugee status. The refugee test enshrined in the Convention also concentrates upon a person’s individualised fear of being persecuted in ‘the country of his nationality’.
In the first sense, ‘nationality’ overlaps in meaning with ‘race’ and ‘ethnicity’ and, particularly in cases involving national movements, ‘nationality’ may become a mark of political opinion and persecution on the ground of nationality merges with political persecution. In the other use it has much the same meaning as ‘citizenship’, when the Convention states that loss of protection of one’s country of nationality is a precondition for refugee status.
Interestingly, a brief glance at the predecessors of the Convention shows that, in the period from 1920 to 1935, lack of protection of a country of nationality was the sole precondition for refugee status (Hathaway 1984, 348). The treaties defined a refugee as a person who no longer enjoyed the protection of their government and had not acquired another nationality. The first refugee accords were intended to address the influx of Russian and Armenian refugees. Hathaway describes this as the ‘juridical’ approach, as the purpose of conferring refugee status was to facilitate their international movement. For this purpose, certificates of identity were issued. The importance of this response is that it recognised the importance of filling the gap between the loss of protection of the country of nationality upon flight and acquisition of a new nationality in a country of nationality. I shall elaborate upon the significance of this (literally) international response below (Warner 1999, 258 emphasises this point). Another significant feature of this approach is that the international community identified those in need of protection by reference to ethnic origin and/or territory rather than in terms of individualised fear.
A ‘social’ approach dominated in the subsequent period, 1935–39 (Hathaway 1984, 361-370). Refugees were defined as the victims of particular social or political events, but they were also required to show loss of de jure or de facto nationality as in the previous period. Importantly, the agreements encompassed groups of people rather than the individualistic approach of the Convention.
Under the Convention, the grounds or reasons for persecution largely arise from the person’s civil or political status, but importantly also include persecution on the basis of ‘race’ and ‘nationality’. Looking at the meaning of ‘nationality’ as a ground of persecution, the United Nations High Commissioner for Refugees (UNHCR) handbook which guides the interpretation of the Convention says that the term is not to be taken to mean only citizenship. ‘It refers also to membership of an ethnic or linguistic group’ (UNHCR 1992, para 74). It is also stated that: ‘It may not always be easy to distinguish between persecution for reasons of nationality and persecution for reasons of political opinion when a conflict between national groups is combined with political movements’ (para 75). The handbook suggests that in most cases, persecution for reasons of nationality is feared by persons belonging to a national minority (para 76).
These guidelines suggest that in the Convention definition, ‘nationality’ has one meaning overlapping with citizenship and another meaning in which it overlaps with ‘race’, ‘ethnicity’ or ‘political opinion’ in stating a ground for persecution. In practice, very few cases are successfully argued on the nationality ground. The tendency is to absorb it and the allied ‘race’ ground into the broader category of ‘member of a particular social group’. For example, the case which came before the Australian High Court as Applicant A v Minister for Immigration (1997), and which involved a claim for asylum by a Chinese couple on the basis of the one-child policy, began life in the Refugee Review Tribunal (RRT) as a claim on the grounds of race and political opinion.4 The couple claimed, unsuccessfully, that they were discriminated against as members of an ethnic group, and that their objection to the policy reflected their political opinion. I shall return to this point again when I discuss solutions under the Convention.
As for loss of nationality as a precondition to refugee status, in Ward v Attorney General (1993),5 the Supreme Court of Canada emphasised the need to demonstrate an absence or loss of the state or national protection of all relevant countries in order to come within the refugee definition; that is, it emphasised the need to show ‘ineffective state protection’ (1993). Hathaway suggests that the fundamental feature of the refugee definition is that it requires consideration of the relationship between a particular individual and his or her state (Hathaway 1996, 370). In the context of persecution by non-state agents, there is a debate about the nature of that lack of protection. Some argue that the persecution should be linked to a state (see Kneebone 2003a, ch 11). But Ward and other authorities explain that the loss of protection of the country of nationality is relevant to the issue of a ‘well founded fear of being persecuted’. That is, it is not necessary to show direct state participation in the acts of persecution.
The focus on the availability of effective nationality as an essential element of the refugee definition (and the test of ‘well founded fear of persecution’) is also clear in the cessation provisions of art 1C. A person who voluntarily re-avails himself or herself of (art 1C(1), see also art 1C(4)), or re-acquires (art 1C(2)), the protection of the country of nationality is excluded from the protection obligations in art 1A(2). Other parts of art 1C recognise that if the circumstances requiring protection cease to exist, then protection is no longer required (art 1C(5) and (6)). Article 1C(3) specifically states that if a person has acquired a new nationality and enjoys the protection of the country of that new nationality then, similarly, he or she is excluded from the protection obligations in art 1A(2). This ‘new nationality’ provision is mirrored in the ‘de facto’ protection provision in art 1E referred to above.
We now turn to the relevance of ‘nationality’ to the rights of asylum seekers and solutions to the refugee problem. It is often said that refugee protection is of a surrogate nature, which involves the asylum state stepping into the place of the country of nationality and providing substitute nationality by way of protection. Some may point to the fact that the grounds or reasons for persecution largely arise from the person’s civil or political status (which suggests that the Convention is concerned with civic values and citizenship) to justify this focus. This emphasises the link that is made between refugee status and the state in implementing the Convention. Shacknove, for example, argues that the Convention presupposes a public duty on the part of the state to protect the applicant (1985, 274). Shacknove suggests that it contains an implicit assumption that the normal basis of society is the bond of trust and loyalty between the state and its citizens. On that view, satisfaction of the elements of the refugee test presupposes that the bond has been severed. Shacknove argues that the basis of ‘refugeehood’ under the Convention is the breach of the bond between state and citizen, of which persecution and alienage are but the physical manifestations.6
Governments have tended to assume and seek retreat from the position that their obligations under the Convention equate to surrogate protection, which will lead to a grant of full nationality or citizenship.7 As Hathaway and Neve argue, the emphasis upon permanent solutions leading to citizenship has led to states’ adopting restrictive approaches to the Convention (Hathaway & Neve 1997, 115). The Convention does not require a host Contracting State to confer this status upon a refugee. But it comes close to imposing obligations giving refugees similar rights to nationals in relation to basic freedoms,8 including housing, education and employment. Articles 27 and 28 impose an obligation upon Contracting States to issue identity papers and travel documents to a refugee to enable him or her to move as if he or she was a national of that country. Article 34 requires Contracting States ‘as far as possible’ to ‘facilitate the assimilation and naturalisation of refugees’. Although the Convention is silent about political and civic rights, the obvious way to satisfy art 34 is by the conferring of citizenship.
However, other parts of the Convention imply that non-permanent solutions are adequate. Article 1C recognises that if the circumstances requiring protection cease to exist (that is, if the persecution ceases), then the refugee definition is not satisfied. It possibly sanctions the concept of temporary protection. Article 1C recognises that repatriation (re-acquisition of nationality) may be viable in some circumstances. It has also been argued that art 31, which prohibits the imposition of penalties upon persons ‘coming directly from a territory where their life or freedom was threatened’, implies authorisation of the ‘safe country of first asylum’9 and ‘safe third country’ concepts. As we shall see below, these responsibility-shifting approaches go hand in hand with the focus on the non-refoulement protection principle, and the rejection of an effective nationality principle.
Hathaway and Neve have argued that it is the emphasis on permanent solutions (such as conferring nationality) that leads states to think about refugees as forced migrants (1997, 115). States protest that international refugee law has the consequence that their sovereign right to choose who shall become members of their community is removed (Illingworth 2003).10 Studies have shown that generous responses by receiving states prevail when there is a coincidence between their ideological and geopolitical interests and those of the refugee population (Mertus 1998, 321). One study of the British response in the 1930s suggests that it was motivated by an understanding of sovereignty in terms of its territorial interests rather than nationality (or general humanitarian concerns) (Beck 1999, 597). As Beck summarises this difference, ‘Britain had no interest in refugees beyond its borders’ (1999, 624). It is important to note that the pre-1951 treaties clearly identified the sociopolitical orientation of refugees, whereas the Convention focuses upon individuals. That is, states are not happy when they are forced to accept outsiders not of their own choosing as new ‘nationals’.
Two general sets of observations can be drawn from this discussion. First, ‘nationality’ is linked to the issue of refugees in several ways. Under the Convention, ‘nationality’ is a ground of persecution, though in practice this ground is submerged within others. Second, lack of protection of a country of nationality is a precondition for refugee status, which implies that, conversely, acquiring or reacquiring a nationality can disentitle an asylum seeker to that status.
In those latter contexts, the important idea is that the Convention requires ‘effective nationality’ as a form of human rights protection, as explained above. However, ‘nationality’ and ‘citizenship’ are treated as the same concept under the Convention.11 As the above discussion illustrates, receiving states tend to think of refugee issues in terms of citizenship, although the text of the Convention speaks of ‘nationality’. Perhaps this elision between the two concepts accounts in part for restrictive refugee policies. In collapsing the idea of nationality into citizenship for domestic/municipal law, states can forget the significance of the international regime of protection and consider the issue from a purely domestic standpoint.
I want now to concentrate upon the use of ‘nationality’ and ‘citizenship’ as exclusionary concepts in the policy which governs the implementation and interpretation of the Convention. In this context, it is significant that the Convention is implemented in Australian law through the Migration Act 1958 (Cth) (the Act), which applies to ‘non-citizens to whom the Minister is satisfied Australia has protection obligations’ under the Convention: s 36(2).12 In Australian policy, refugees are consistently defined by excluding them as persons outside our legal and value systems. That is, as Fiona Jenkins explains by reference to Agamben, they are defined by way of ‘inclusive exclusion’ (Jenkins, 2004).
I take as my starting point for ‘nationality’ a definition by Elizabeth Kiss. She says:
[N]ationalism is a form of political consciousness which revolves around identification and allegiance to a nation. A nation, in turn, is a group whose members consider themselves to have a shared culture and history and who in fact typically share one or more objective characteristics, such as language, ethnicity, race, religion, or political history [Kiss 1995, 371–372, emphasis added].
She continues: ‘Nations are distinct from families or communities because they are too large for their members to know one another; they are “imagined communities”’ (Kiss 1995, 371–372, cited in Musalo 2002, 486). In this statement, she defines nationalism in terms of allegiance, so that we can see the association between the concepts of nationality, nationalism and political and cultural identity.
The picture seems more complex for ‘citizenship’, which as explained above is a ‘domestic’ concept. The complexity of this concept is apparent in the survey of citizenship theory by Kymlicka and Norman who conclude that ‘it remains unclear what we can expect’ of such studies (1994, 377). Linda Bosniak has suggested that ‘citizenship’ can be defined ‘as a legal status, as a system of rights, as a form of political activity, or as a form of identity and solidarity’ (2000, 452) and suggests that the answer varies according to the context. From this definition, we can see that the democratic idea of political participation is a very important addition to the ‘nationality’ characteristics.
In the refugee context, which is viewed by governments as an aspect of immigration control, citizenship is used in all senses as an exclusionary concept. Stephen Legomsky has explained:
The United States chooses to immunize its citizens from immigration controls and to give preference to designated alien family members of United States citizens. Citizenship gives us a convenient shorthand for describing the classes of individuals to whom we extend those rights [Legomsky 1994, 289].
Again, he says, ‘citizenship is a means of defining those whom we regard as our own’ (1994, 291). For example, the legal characterisation of the asylum seekers as ‘aliens’ in Lim v Minister for Immigration (1992) meant that they could be subjected to ‘administrative’ detention — the Court carefully distinguished the rights of such aliens as non-citizens from those of citizens.13
The concepts of nationality and citizenship are used in the refugee context to draw lines between those who belong inside the legal system and those who do not. They define those who we are prepared to identify as one of ‘us’, as distinct from the ‘them’ who are outside the legal system, so that the refugee is defined or ‘imagined’ negatively by the characteristics he or she does not possess rather than by his or her need for protection as a bearer of human rights. In the following analysis, I take aspects of the above definitions to show how the concepts of nationality and citizenship are used as ‘inclusive exclusions’ of refugees from our legal system. I discuss the ‘exclusive’ characteristics of refugees in terms of allegiance and security, community and national identity, and as political members of a community.
I take the idea of allegiance first because, significantly, it is the foremost concern of the Australian Government, and predominates in its presentation of these issues to the public (Corlett 2000, 13). Moreover, it is an idea that has resonated in the courts.
In the litigation which followed the incident involving the MV Tampa, the Full Court of the Federal Court accepted the argument that the power of the government to expel the asylum seekers arose from the analogy of the right to repulse ‘enemy aliens’ at the border (Ruddock v Vadarlis (2001)). French J, in the majority, arguably elevated s 61 of the Constitution to a ‘gatekeeping function’, which extended to a power to prevent the entry of non-citizens as an incident of the power to exclude. His Honour said at 543:
The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community, from entering.
It is interesting to note that, in that passage, a link is made between allegiance and identity when French J referred to ‘the Australian community’.
Another way in which the allegiance of asylum seekers or boat people is questioned is through the ‘criminalisation’ of their actions and identities (ss 91T-91V of the Act, added by the Migration Legislation Amendment Act (No 6) 2001 (Cth)). They are frequently represented as a threat to security, particularly in the post-September 11 2001 context. They are primarily associated with people smuggling (Millbank 2000-01; Illingworth 2003) and illegal activities, being described as ‘illegals’ (The Age 3 Nov 1999, 4) or even as ‘illegal refugees’ (The Age 9 June 2000, 3). The media is often equally as responsible for this perception. For example, it described the fires at the detention centres during Christmas 2002 as ‘blamed on militant networks’ (The Age 7 June 2002, 4).
These negative perceptions are largely accounted for by the gap in nationality that the Convention recognises — the loss of protection of nationality has to be made good, but the refugee is conceived as an unknown individual between nations in international law.
Kiss adopts the description of nations as ‘imagined communities’ and, although she distinguishes nations and communities, it is useful to begin with a discussion of community membership so that we can see how communities become identified. The idea of community membership is central to the concept of citizenship (Kymlicka & Norman 1994). Dauvergne has argued that exclusion from membership of a community is a consequence of liberal theory in the immigration context, as liberal theory presupposes a bounded community (Dauvergne 1997, 323). Kymlicka and Norman explain:
Citizenship is intimately linked to ideas of individual entitlement on the one hand and of attachment to a particular community on the other. Thus it may help clarify what is really at stake between liberals and communitarians [Kymlicka & Norman 1994, 352].
In terms of individual characteristics, the official discourse suggests that asylum seekers are outside our value system. On Australia Day 2003, The Australian newspaper editorial identified our value system as involving ‘our belief in diversity and tolerance, and our commitment to individual, religious and economic freedoms’. This echoes the values identified in Australians All: Enhancing Australian Citizenship (Joint Standing Committee on Migration 1994, p xxv). We pride ourself as being a ‘democratic, freedom-loving country’, whose values are summed up by slogans such as ‘mateship’ and ‘fair dinkum’. But not when refugees are concerned. Indeed, because asylum seekers are kept away from the public eye, we are not given the opportunity to identify them as persons who might become members of our community.14
In addition to being portrayed as people outside our value system, the rights of asylum seekers under international law are sometimes treated with scorn in the legal system. For example, in the Tampa case they were described as ‘rescuees’ — a deliberately neutral term agreed on between counsel for the Commonwealth and the other parties to meet the government’s objection to the use of the term ‘asylum seeker’. In the Tampa case, the use of the term ‘rescuees’ was consistent with the fact that the status of the asylum seekers as persons exercising a right of flight (Universal Declaration of Human Rights, art 14) was never clearly identified or defined in the litigation. This policy of unwillingness to identify asylum seekers as bearers of rights includes their depersonalisation (Lynch & O’Brien 2001, 215) by the practice in detention of identifying them by numbers not names, plus legislation requiring that their names not be published (ss 91X and 501K of the Act).
The Australian Government thus defines refugees as non-citizens who are outside our ‘imagined community’ and who can be excluded from our legal system.
In this survey of factors which show how the idea of nationality or citizenship is used negatively, constructing the refugee as outside our value and legal systems, there is one final issue to consider. This is the political participation or rule of law issue. Refugees are not treated as equals in relation to their ‘entitlements’ or human rights. Instead, they are regarded as the objects of humanitarian largesse (Dauvergne 1999, 597, contrast Taylor 2001, 191). Alternatively, they are regarded as the objects of moral as distinct from legal rights, to whom a response based on needs is due (see, for example, Cullity 2003). Relevant examples of the denial of ‘democratic’ rights (using this term broadly) involve the exclusion of the right to participate meaningfully in the legal processes — for example, by the standard of review before the RRT (Kneebone 2003b); the exclusion of natural justice as the ground of review (Kneebone 2002, 355); and the exclusion of judicial review as such, not to mention the unavailability of legal aid. Asylum seekers are often accused of using the judicial system to ‘string out the process’ (Ruddock 2003, 1). In fact, it is the Government that uses the system — it ‘goes slow’ and freezes applications, but takes test cases through the highest courts to block unwanted precedents. Add to this attacks on the courts and tribunals by the Minister and the frequent passage of legislation to overturn inconvenient decisions,15 and we see a system of rule by the executive rather than the law.
Additionally, we tolerate ambiguous legal situations in relation to children in detention (The Weekend Australian 1-2 February 2003, 7) and detainees in general (Weekend Australian 12-13 October 2002, 1-2), including the investigation of crimes in detention, which again illustrate the exclusion of asylum seekers as legal persons.
One can see that by not allowing refugees to be ‘imagined’ into our community either in terms of membership (citizenship) or national identity (territorial) or democratic rights, they can be kept outside our justice system. The ideas of nationality and citizenship are used to define their differences in terms of security (allegiance) and identity, and to justify their exclusion from our democracy. Nationality and citizenship are used by the state as exclusionary concepts in implementing the policy of the Convention.
In this part of the paper, I demonstrate how nationality has been applied as the basis of effective protection under the Convention. I discuss one line of cases involving East Timorese asylum seekers in which the Court applied an effective nationality principle, but the Government responded by freezing their applications and legislating against this interpretation. I then describe another line of cases in which the non-refoulement principle has been allowed to ‘hijack’ the concept of effective nationality. That is, nationality as an inclusive principle appears to be an inconvenience that the Government seeks to avoid.
I begin with a brief elaboration of the non-refoulement principle. Article 33 of the Convention states: ‘No Contracting State shall expel or return a refugee ... to the frontiers of territories where his life or freedom would be threatened [for a Convention reason].’
This fundamental principle applies to both refugees and asylum seekers — it extends to every individual who has a well founded fear of persecution, or substantial grounds for believing that he or she would be in danger of torture if returned. It applies whether or not the asylum seeker is formally recognised as a refugee. The principle is embodied in a number of conventions and agreements, including the Convention Against Torture.16 The application of the non-refoulement principle involves an assessment of the risk of persecution and requires that a ‘fair and reasonable’ conclusion be reached.17 The link between arts 1 (the refugee definition) and 33 in the Convention is well recognised in the application of the principle.
But it is also now clear that a minimal interpretation of the non-refoulement principle has lead to the so called ‘safe third country’ solution — the idea that a state is not in breach of the principle by returning an asylum seeker to such a country (Mathew 2003, 130-134).
In the East Timorese cases, the Court applied a concept of ‘effective nationality’. In the leading case of Jong Kim Koe v Minister for Immigration (1997), the Federal Court found that, while East Timorese are dual nationals as a result of Indonesian and Portuguese laws, the RRT had failed to consider whether Portuguese nationality was effective — that is, whether it was effective to secure protection from refoulement to Indonesia. The Court said there must be effective nationality in Portugal (see Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998); SSRP v Minister for Immigration and Multicultural Affairs (2000)). Thus, according to the Federal Court, Portuguese nationality does not automatically provide effective protection for the purposes of the Convention.
In reaching that conclusion, the Court referred to the general principles of interpretation of treaties under the Vienna Convention, art 31: that interpretation must be made in ‘good faith’. The Court also said:
To interpret ‘nationality’ for the purposes of art 1A(2) as something of a ‘merely formal’ character ... instead of something effective from the viewpoint of a putative refugee, would be liable to frustrate rather than advance the humanitarian objects of the Convention [emphasis added].
This decision is important background to the current crisis regarding East Timorese asylum seekers in Australia. As a result of the Federal Court’s interpretation of ‘effective nationality’, the Government froze the processing of applications.18 Australia has insisted that East Timorese hold Portuguese nationality and should travel there instead of claiming refugee status in Australia — a move which Pene Mathew (1999) suggests is designed to appease Indonesia by avoiding finding that Indonesia persecuted East Timorese. Recently, the Government decided to reactivate their claims, indicating that they were unlikely to be granted refugee status, and that they are liable for deportation. The Government has indicated that they cannot be considered refugees due to the stability in East Timor.
In addition to freezing their applications, the Government amended the Act to exclude the concept of ‘effective nationality’ from Australian refugee law. Although an asylum seeker cannot be returned to a persecutory country of nationality,19 determinations of nationality are to be made ‘solely by reference to the domestic law’ of the country concerned.20
In this next part of the paper, I contrast the way that art 1E of the Convention, the ‘de facto nationality’ provision, has been interpreted and applied in Australia to show how it has been ‘hijacked’ by the non-refoulement principle and the burden-shifting ‘safe third country’ approach, in place of ‘effective nationality’. I then examine the Border Protection Legislation Amendment Act 1999 (Cth) in relation to persons who had a right of re-entry to a safe third country when they left that country, but have subsequently lost such right as an example of legislative policy, and the attempts of the Federal Court to grapple with this issue.
As explained above, art 1E is one of the exclusion or cessation clauses in the refugee definition. It provides:
This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
Hathaway explains that art 1E was originally intended to bar from international protection all ethnic German refugees from East Germany after World War II (1996, 211-214). This reflected the fact that Germany was morally responsible for them and should assimilate them. But, says Hathaway, the drafters did not want to refer specifically to this situation. He states that art 1E requires a guarantee of rights at least as favourable as those which follow from Convention status, and that rights of entry and of freedom from removal/expulsion must be clearly conferred (1996, 211).
The leading Australian decision is that of the Full Court of the Federal Court in Minister for Immigration v Thiyagarajah (1997). The issue in the Thiyagarajah case was whether art 1E applied as an exception to art 1A(2) of the Convention so that Australia did not owe protection obligations to the applicant, who had been granted refugee status in France. The applicant in this case was a Sri Lankan who claimed that he had left that country after he had been arrested and harassed by government forces who suspected that he had assisted the Tamil separatist organisation, LTTE. He fled first to France where he was granted refugee status and a Carte de Resident (equivalent to permanent residence), valid for 10 years and automatically renewable. However, he claimed that in France he was threatened and harassed by the LTTE and that the French police were unwilling or unable to protect him. He therefore fled to Australia and sought a protection visa under s 36(2) of the Act.
The primary decision maker and the RRT the rejected his claim on the basis that he came within the exception in art 1E as having the ‘rights and obligations which are attached to the possession of the nationality’ of France. They said that it was not necessary to consider whether he had a well-founded fear of persecution in that country. The RRT nevertheless considered and rejected the possibility that he was at risk of persecution in France. As for the ‘rights and obligations’, the RRT found that the fact that there were restrictions on refugees with residence status such as Mr Thiyagarajah entering the public service and certain professions was not inconsistent with having the rights of de facto nationality within the meaning of art 1E. However, on judicial review, Emmett J disagreed.21 Emmett J said that the employment difficulties suffered by Mr Thiyagarajah were not insignificant and set him apart from other French nationals. Emmett J concluded that the RRT had erred by failing to recognise that fact and by failing to consider the nature of his rights of re-entry to France, which the applicant claimed had now expired. He remitted the matter to the RRT.
The Minister appealed to the Full Court. The Minister argued first that Emmett J had given art 1E a too limited operation in interpreting the issue of ‘rights and obligations’ as the applicant had been granted refugee status. Second, the Minister queried whether, independently of art 1E, the protection obligations under the Convention apply to persons who have acquired effective protection as a refugee in another country: that is, to persons who are not liable to be ‘refouled’. He was concerned that art 1E should not become an instrument of ‘forum hopping’. The applicant countered by arguing that the issue of ‘well-founded fear of persecution’ had to be taken into account.
Thus, two issues about the interpretation of art 1E were raised. First, there was an argument about the scope and meaning of ‘rights and obligations which are attached to the possession of the nationality of that country’. Second, there was an argument about whether it was necessary to consider anything beyond that first issue: that is, whether an applicant is a refugee with a ‘well-founded fear of persecution’. The Full Court said that it was not. However, the Court decided the case not on that ground, but on the basis of the non-refoulement argument raised by the Minister for Immigration. This was the beginning of a line of cases in which the courts have basically side-stepped art 1E. The leading judgment of von Doussa J in this case has widely been attributed as sanctioning a minimalist non-refoulement approach where a ‘safe third country’ exists.
The Full Court accepted the second (non-refoulement) limb of the Minister’s argument and decided the appeal on that point. It decided that as the applicant had ‘effective protection’ in France as a ‘safe third country’, it was not strictly necessary to determine the scope of art 1E. Nevertheless, von Doussa J, who gave the leading judgment, agreed that if the applicant came within the scope of art 1E, there need be no ‘separate and antecedent inquiry’ as to whether the applicant has a ‘well-founded fear’ within the meaning of art 1A(2) (Thiyagarajah at 555). He described art 33 as imposing the ‘principal obligation’ under the Convention (1998, at 557). But his analysis of the issues suggests that the reason that art 1E stands alone is because it precludes risk of refoulement. Indeed, there are some ambiguities in his judgment which have allowed his reasoning to be truncated in subsequent decisions.
On the one hand, even though von Doussa J said that the application of art 1E was an independent issue, he clearly linked the application of art 33, the non-refoulement obligation and the general protection obligations owed under art 1A(2) of the Convention (Thiyagarajah at 557-558). He also stressed that the whole of art 1 be ‘understood as together comprising the definition of refugee’ (at 555). Von Doussa J said at 562: ‘The expression “effective protection” ... means protection which will effectively ensure that there is not a breach of art 33 if that person happens to be a refugee.’
He made it absolutely clear that this was to be considered as an issue in the same terms as art 1A(2): namely whether there was a ‘well-founded fear of persecution’. This approach, together with his statement that the whole of art 1 must be read together, is difficult to reconcile with his view that art 1E is independent. Arguably, von Doussa J implicitly recognised the link between protection, nationality and non-refoulement and subsequent application of his judgment has been taken out of context.
Von Doussa J also stressed the legislative context and the high degree of discretion given to the Minister under the Migration Act 1958 (Cth). He pointed out that, in contrast to the previous legislation,22 the 1992 amendments to the Act placed emphasis on whether a person ‘has’ (rather than ‘had’) the status of a refugee. This is the state of satisfaction which the Minister is to achieve under s 65 of the Act. He said that simply being a refugee in international law would not entitle a person to protection in Australia (Thiyagarajah 557-553). In addition to the Minister’s state of mind under s 65, he referred to Australia’s sovereign right to determine who will be admitted into, and allowed to remain in, its territory (1998, at 551). He thus referred to the limited incorporation of the Convention in Australian law and suggested that the basic non-refoulement principle is qualified by territorial sovereignty. This is difficult to reconcile with his discussion of the nature of the protection obligations, as summarised in the previous paragraph.
In other aspects of the judgment, von Doussa J emphasised that the non-refoulement question requires a proactive enquiry to answer it correctly — as the RRT had undertaken. He said that the RRT had made a finding of fact that the degree of protection normally expected of a government would have been forthcoming from the French authorities. The Full Court allowed the appeal because it considered that no error of law was shown by the RRT, which notably had decided that the applicant had effective protection in France, as the summary above explains. It remitted the matter to the RRT because it was concerned that the applicant’s rights of re-entry to France had changed, as I explain below. Thus, overall, I argue that von Doussa J was very aware of the need to apply the non-refoulement principle broadly in the light of the persecution test, although his discussion of the sovereignty issue is ambiguous.
Although the appeal was allowed, the Court gave permission to the parties to apply to vary the terms of the orders. In supplementary reasons delivered subsequently, a majority of the Full Court made an order under s 481 of the Act to remit the matter to the RRT for it to consider the issue of non-refoulement raised by the applicant’s claim that his re-entry permit had now expired. The RRT was directed to consider whether ‘facts exist which, in accordance with the principles referred to in the reasons for judgment ... now impose protection obligations on Australia under the Refugees’ Convention’.23 Sackville J dissented from the terms of the order and his reasons form the basis of the view accepted by a majority of the High Court.
In the High Court, the argument turned upon the terms of s 481(1) of the Act and whether the Full Court had the power to make an order in those terms. Briefly, for the sake of avoiding technical points, the High Court seemed to be persuaded that the effect of the Full Court order was inconsistent with the nature of the RRT’s statutory powers.24 They concluded that the order made by the Full Court implied that the RRT decision was merely provisional. The High Court did not comment upon the substantive issues.
Thus this case study shows how the Government’s argument on the non-refoulement principle and ‘forum hopping’ won the day. Yet there are tensions in von Doussa J’s approach to the issues. As a matter of principle, he decided that art 1E was not relevant, and that, even if it were, no separate inquiry about the risk of persecution need be made. However, this does not fit with his analysis of the issues and his approval of the RRT approach. This case was the beginning of a line of authority which is inconsistent with Canadian cases in which the courts have insisted that de facto rights must be clearly shown. In both the Federal and the High Courts of Australia decisions in Thiyagarajah, it seemed that the legislative policy predominated.
Before considering the application of Thiyagarajah, I want to contrast the approach to art 1E in Canadian case law. Generally, the Federal Court of Canada has applied art 1E more broadly, recognising on many occasions that the answer to the first issue (what ‘rights’ are granted) does not preclude consideration of the second (is there a ‘well-founded fear of persecution’). That is, it has been recognised that there is often a need to balance the ‘inclusion’ and ‘exclusion’ aspects of the refugee definition when applying art 1E. Generally, the jurisprudence is influenced by Ward and the need to find whether there is ‘effective nationality’ protection. In several cases where a claimant had been granted refugee status in another country, the Court considered whether he or she had a well-founded fear of persecution in the second country. In Nepete v Canada (Minister of Citizenship and Immigration (2000) it was suggested that a decision maker needs to consider art 1E rights first, and then the persecution issue. In several cases, the Court has looked to this issue to determine indeed whether the claimant truly has ‘rights and obligations which are attached to the possession of the nationality of that country’.25 The guidelines prepared for the Refugee Board state that the ‘case law seems to suggest that the CRDD should consider whether the claimant has a well-founded fear of persecution for a Convention reason in the Article 1E country’ (Legal Services, Immigration and Refugee Board, 1995). This indeed is the logical result of von Doussa J’s analysis. But the Thiyagarajah decision reflects the Government’s concern with ‘forum shopping’ and, implicitly, deterring ‘secondary movers’ in the interest of border control.
An unfortunate consequence of the Thiyagarajah decision is that the idea of ‘effective protection’ in a ‘safe third country’ has overtaken the de facto nationality exception in art 1E. This seems to occur even when the Minister’s delegate and the RRT decide on the basis of art 1E (for example, Applicant C v Minister for Immigration (2001); W228 v Minister (2001)). On review, the argument shifts to effective protection under the non-refoulement principle. In this process, the focus moves from protection as surrogate nationality to protection in fact. Article 33 has become the centrepiece of this analysis, but has not been applied in accordance with the high standards noted above. Article 1E has simply dropped out of the picture, or receives only a cursory reference, even when it is directly relevant.26 In Mylvaganam v Refugee Review Tribunal (2001), Merkel J said (at [10]) that Thiyagarajah stands for the proposition that:
Although there may be a legitimate dispute as to whether Art 1E applied to an application for a protection visa, Australia does not have protection obligations ... if the country where the applicant is resident was able to provide effective protection in accordance with its obligations under the Refugees Convention.
But more fundamentally, in subsequent decisions there has been a failure to link art 33 with the basic protection obligation in art 1A of the Convention. Von Doussa J’s reasoning made it absolutely clear that the refoulement issue was to be considered in the same terms as art 1A(2): namely, whether there was a ‘well-founded fear of persecution’. Indeed, as Merkel J suggested in the above citation, and as many judges (but not all) have recognised, application of art 33 requires an assessment of the risk of persecution (for example, Aluboodi v Minister for Immigration (2000) per Nicholson J; Minister for Immigration v Yasouie, (2001); Al-Rahal v Minister for Immigration (2001)). But in decisions soon after the Thiyagarajah case, it was suggested that consideration of art 33 is logically anterior to art 1A (Gnanapiragasam v Minister for Immigration (1998)). For example, in Al-Anezi v Minister for Immigration (1999), the Court said that if art 33 applies, then art 1A(2) is to be considered. Thiyagarajah’s case was applied in Minister for Immigration v Al-Sallal (1999). The Court suggested (incorrectly) that the result of von Doussa J’s discussion in Thiyagarajah of the effect of the 1992 amendments to the Act was to focus upon art 33 alone, and not art 33 in conjunction with art 1A(2). At least, that is the way that their discussion has been interpreted in subsequent cases (Ryan J in Anavaratham v Minister for Immigration (2001)). Arguably, this was not what Von Doussa J intended.
In his discussion of the non-refoulement principle in Thiyagarajah, von Doussa J extensively referred to European developments in relation to the ‘safe third country’ concept. The effect of Thiyagarajah has been to extend this notion in Australian law (Mathew 2003). In Patto v Minister for Immigration (2000), French J summarised the circumstances in which a person could be returned to a third country consistent with art 33 as follows:
1 ... where the person has a right of residence in that country and is not subject to Convention harms therein.
2 ... whether or not the person has a right of residence in that country if that country is a party to the Refugees Convention and can be expected to honour its obligations thereunder.
3 ... notwithstanding that the person has no right of residence in that country and that country is not a party to the Convention, provided that it can be expected, nevertheless, to afford the person effective protection against threats to his life or freedom for a Convention reason [at 37].
For example, in Al-Rahal v Minister for Immigration (2001) it was said that it involved a question of fact and degree and did not require proof of actual permission or a right to enter that country. As Pene Mathew comments, there are doubts about how these circumstances measure up with UN standards for the non-refoulement principle (2003, 136-137). Basically, this jurisprudence amounts to sanctioning burden shifting solutions rather than those which measure up to the ‘effective nationality’ standard of art 1E.
No doubt emboldened by this convenient development of the non-refoulement principle, and in a further attempt to tighten up border control, the Government secured the passage of the Border Protection Legislation Amendment Act 1999 (Cth) (Mathew 2003, 146-152). For present purposes, the effect of this was to amend s 36 of the Act to provide:
(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
There are two exceptions to the safe third country rule established by s 36(3). The first is where the individual concerned has a well-founded fear of persecution within the meaning of the Convention in relation to the putative safe third country (s 36(4)). The second is where there is a well-founded fear that the putative safe third country will return the individual to a persecutory country (s 36(5)).
The issue that arose in cases applying this legislation was: what is meant by the ‘right to enter and reside’? The bulk of these cases concerned Iraqi nationals who had fled that country, claiming that they feared persecution, and lived in Syria. Their residence in that country was usually precarious. Some claimed that they were living there illegally, others that they had entered Syria legally, but nevertheless feared the Iraqi secret police and return to Iraq by the Syrian authorities. Most claimed that having left Syria, they could not return.
Two lines of conflicting decisions very quickly emerged. The first, influenced by the muddled Thiyagarajah jurisprudence, considered that s 36(3) codified the ‘effective nationality’ cases. This interpretation required that the right ‘to enter and reside’ be assessed as a matter of practical reality and fact. This line of authority was eventually disapproved by the Full Court of the Federal Court in Minister for Immigration v Applicant C (2001). In that case, there was no evidence that the applicant had a legally enforceable right to return to Syria. His right was dependent upon his obtaining sponsorship for his return. The Full Court rejected the argument that s 36(3) was simply a codification of the Thiyagarajah jurisprudence. It accepted the second line of authority which began with W228 v Minister for Immigration (2001) per French J (see also Finn J in S115/00A v Minister for Immigration (2001)) that the right referred to in s 36(3) was intended to refer to a legally enforceable right to enter and reside in a third country. In V856/OOA v Minister for Immigration (2001), for example, Allsop J rejected the interpretation of s 36(3) as voiding obligations to provide protection to a non-citizen who merely had a ‘practical capacity’ rather than a legally enforceable right to re-enter another country. As Lee J pointed out in the subsequent decision of N1045/OOA v Minister for Immigration (2001), this means at least a degree of certainty. In Applicant C, Stone J, who gave the leading judgment, relied heavily upon the parliamentary debates as indicating an intention not to repudiate Australia’s international obligations (see also Gray J in Suntharajah v Minister for Immigration (2001)). In this line of authority, the Court has imposed a higher standard of proof for the non-refoulement issue. This questions the correctness of the Thiyagarajah line of cases.27
More recently, however, the Federal Court rejected an argument that Applicant C questions the correctness of the Thiyagarajah line of cases (V872/00A v Minister for Immigration (2003). In that case, Hill J stressed that the RRT’s legislative function under s 415 of the Act (read with s 65) is to be ‘satisfied’ about Australia’s protection obligations. He thought that this meant that the RRT could adopt a ‘flexible’ approach to these issues (V872/00A v Minister for Immigration at [617]).
In summary, this study of the cases demonstrates two competing approaches. First, the Thiyagarajah line of cases applies the non-refoulement principle in an arguably unprincipled way. Second, the Applicant C approach requires that an asylum seeker has a legally enforceable right of return. This latter approach is consistent with ensuring ‘effective nationality’, but the former is not. Neither is the former consistent with the ‘good faith’ interpretation of obligations under the Convention which was favoured in the East Timorese cases, and which also ensured that the protection standard for asylum seekers was one of ‘effective nationality’.
In this paper I have explained the importance of nationality as the basis of protection provided by the Convention, and as the basis of the policies implementing the Convention. I have argued that it is intended to be an inclusive concept of effective nationality: that is, it is intended to provide protection that will mirror that which has been lost. But instead, nationality (which includes citizenship) is used as an exclusionary concept. Refugees are excluded by being ‘imagined’ as persons who are security risks, who do not have the shared individual characteristics of our communal and national identities (whatever the latter means), and as persons who do not deserve to participate in our political democracy and its institutions. The consequence is that they are denied basic legal rights.
This exclusive nationality concept has led to various policies. First, the principle of non-refoulement that is drawn from the basic need to protect persons against persecution, which is said to be ‘the engine room’ of the Convention, has been applied by the Australian courts and Government in a minimalist way, so as to permit return to so called ‘safe third countries’, in place of the higher standard of ‘effective nationality’. This is essentially a form of ‘buck-passing’ rather than responsible shouldering of Convention obligations, involving burden sharing. Other examples, which have not been discussed in detail in this paper, but which are referred to in passing, include the temporary protection visa regime and the creation of a group of status-less persons released into the community on court order. These groups of asylum seekers are left without protection in the nature of an ‘effective nationality’.
I argue that the focus of providing protection under the Convention should be ‘effective nationality’. I suggest that a status lesser than formal citizenship but greater than a minimalist temporary protection should be provided. The rights attached to temporary solutions must be consistent with general human rights standards (as indeed they are in other countries).
In discussion of the rights of refugees and asylum seekers, the concepts of the state and sovereignty loom large. It is often acknowledged that state politics and policy, rather than adherence to the human rights framework, dictate responses to the refugee problem.28 This discussion of the use (or rather misuse) of ‘nationality’ and citizenship is evidence of this trend. l
Since the decision in V872/00A v MIMA (2003) one line of decisions in the Federal Court has directly challenged the correctness of the Thiyagarajah analysis, whilst another has accepted it. On 14 February 2004, the High Court referred an application for special leave to appeal in V872/00A v MIMA to a Full Court.
* Castan Centre for Human Rights Law Faculty of Law Monash University. The following have given me invaluable research assistance during the gestation period of this paper: Hannah Pavitt, Robyn Sweet, Dan Feldman and Eddy Gisconda. My thanks also to Associate Professor Ian Hunt, Dr Fiona Jenkins and Dr Savitri Taylor and participants at the CAP conference for helpful comments on this paper, and to John Gibson for the inspiration for the paper.
1 Australia acceded to the Convention in 1954 and to the 1967 Protocol relating to the Status of Refugees in 1973 (Refugee Protocol).
2 In that case, the applicants were of Tamil ethnicity from Sri Lanka and had been granted refugee status in Germany.
3 The Convention defines a refugee as ‘any person who ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country ...’.
4 N94\3000 (unreported, 20 May 1994).
5 In that case a former member of the Irish National Liberation Army (INLA) successfully argued that neither the governments of the Republic of Ireland nor the United Kingdom could provide ‘effective protection’ against persecution by the INLA.
6 See Kneebone (2003) for a discussion of the implications of this in context of persecution by non-state agents.
7 For example, in Australia a permanent protection visa was initially granted.
8 Indeed this is the underlying rationale of art 1E.
9 This is the focus of the new regime of visas introduced by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth), which punishes asylum seekers who make ‘secondary movements’.
10 For this reason, Hathaway and Neve suggest a shift to temporary and burden sharing solutions.
11 This is controversial in the light of the drafting history of the Convention which suggests that the concern was with diplomatic protection. See Kneebone (2003a).
12 The emphasised words were added by amendment in 2001.
13 Similarly in Minister for Immigration v Teoh (1995) at 273, Gaudron J considered that the rights arose on the facts of that case by virtue of the children’s status as Australian citizenship.
14 Interestingly, when the Tampa refugees were off-loaded onto Nauru the Australian public was given a rare opportunity to see the human faces of these people when journalists had relatively unrestricted access to them through fences for several weeks.
15 For example, s 91R added by Migration Legislation Amendment Act (No 6) 2001 (Cth) was aimed at restoring the application of the Refugees Convention in Australia to ‘its proper interpretation’ (Explanatory Memorandum). It was suggested that ‘[o]ver recent years the interpretation of the definition of a refugee by various courts and tribunals has expanded the interpretation of the definition so as to require protection ... in circumstances that are clearly outside those originally intended’.
16 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force on 26 June 1987. See also UDHR art 5.
17 Mathew (2003, 130-134) explains the standards formulated by the UN for this requirement.
18 Mathew (1999, 7) refers to ‘self-serving’ reading of the principles.
19 The exceptions in s 36 (4) and (5) of the Act are applicable.
20 See ss 36(6) and 91N(6) of the Act.
21 In reaching that conclusion, Emmett J relied upon Bardizeh v MIMA (1996, at 417). In that case Hill J explained that art 1E is concerned with whether an applicant has ‘de facto nationality’ and that it is necessary to establish that he or she has the same rights and is under the same obligations as a national. The Full Court agreed with this statement, but did not have to decide the point in Thiyagarajah. Note that the facts in Bardizeh were similar: the applicant had been granted asylum in Germany but claimed that he was persecuted there by ‘skinheads’ and the police were unable to protect him.
22 Section 4 defined a refugee as a person who ‘had’ the status of a refugee.
23 Unreported 4 March 1998.
24 Relevant provisions included s 415 which refers to its merits review function, ss 417 and 48B (Minister’s discretions).
25 For example, Canada (Minister of Citizenship and Immigration) v Mohamud (1995); Canada (Minister of Citizenship and Immigration) v Mahdi (1995); Dawlatly v Canada (Minister of Citizenship and Immigration) (1998).
26 For example, in Mylvaganam v Refugee Review Tribunal (2000), although the RRT had made its decision by applying art 1E, Merkel J applied the ‘effective protection’ approach. This trend began with Rajendran v Minister for Immigration (1998). See also Minister for Immigration v Tas (2000).
27 Lee J in N1045 / OOA v Minister for Immigration, 2001, queried whether this line of cases is consistent with the obligations Australia has undertaken by enacting s 36(2) of the Act.
28 ‘Acceptance rates are more revealing of a country’s political priorities, or its attitude to migration, or the weight of numbers it has to deal with, or its diplomatic relations with ‘sending’ countries, than the genuineness of refugee claims’ (Millbank, 2000-01, 4).
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