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Sidhom, Mark --- "Jong Kim Koe v Minister for Immigration and Multicultural Affairs: Federal Court Loses Sight of the Purpose of the Refugee Convention" [1998] SydLawRw 13; (1998) 20 (2) Sydney Law Review 315

Jong Kim Koe v Minister for Immigration and Multicultural Affairs: Federal Court Loses Sight of the Purpose of the Refugee Convention


1. Introduction

The recent case of Jong Kim Koe v Minister for Immigration and Multicultural Affairs[1] appears to have settled an apparent inconsistency in Australian international relations concerning East Timor, an issue that has proven to be one of the most contentious in Australia’s international affairs policy. The seeming inconsistency is that, on the one hand, the Australian Government recognises Indonesian sovereignty over East Timor and has also claimed that Portugal had no right to represent the interests of the East Timorese before the International Court of Justice.[2] On the other hand however, Australia has simultaneously claimed that, for the purposes of refugee law, East Timorese should be denied refugee status in Australia on the basis that they are also nationals of Portugal, and hence they should seek asylum there. The Federal Court in this recent decision decided, amongst other things, that there was no inconsistency between these two assertions by the Australian Government.[3] However, the Court held that, while accepting the dual nationality of some East Timorese, that second nationality must also be found to be effective to satisfy Australia’s international asylum obligations. While the prerequisite of effective nationality is an established requirement of international refugee law, it is the contention here that the Federal Court applied the principle without reference to the purpose and object of asylum obligations, and in so doing has not served these purposes adequately.

A. Facts

The applicant in this case, Mr Jong Kim Koe, was born in East Timor in 1973, while East Timor was still under Portuguese administration. In 1975, however, Portugal withdrew and from 1976 East Timor has been occupied by Indonesia. In 1991 Mr Jong participated in demonstrations preceding a massacre at Santa Cruz cemetery. In 1992, under his issued Indonesian passport, Mr Jong came to Australia. From 1992 until 1996 Mr Jong participated in demonstrations and rallies in support of East Timor, and evidence was given that the Indonesian authorities in East Timor have shown considerable interest in his whereabouts. Mr Jong applied to qualify as a refugee in Australia in 1992.

B. Refugee Convention Requirements

In defining a refugee in international law, the starting point is Article 1A(2) of the 1951 Convention Relating to the Status of Refugees (the Refugee Convention), as amended by the 1967 Protocol Relating to the Status of Refugees[4] . Article 1A(2) describes a refugee as a 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, owing to such fear, is unwilling to avail himself of the protection of that country... .

However, an important qualification to the definition of who may qualify as a refugee is found in the second paragraph of Article 1A(2), which provides that,

In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

This provision affects those with multiple nationality, such that unless a wellfounded fear exists with regard to each of the States of which that person is a national, they will not be entitled to refugee status.

C. Minister’s Delegate and RRT

In 1992 Mr Jong applied to the Minister for Immigration and Multicultural Affairs for recognition as a refugee. The Minister’s delegate rejected that application in August 1993 on the basis that the applicant, being of Indonesian nationality, did not have a well-founded fear of persecution if he returned to Indonesia. Mr Jong then applied to the Refugee Review Tribunal (RRT) for a review of that decision.[5] Further evidence was presented before the RRT to show that if Mr Jong returned to Indonesia he would be persecuted. The RRT accepted this evidence, concluding that if Mr Jong returned to Indonesia he would face a real chance of persecution for one of the reasons stated in Article 1A(2) of the Refugee Convention. However, the RRT found that Mr Jong possessed dual nationality, being a national of both Indonesia and Portugal. Therefore, as required by the second paragraph of Article 1A(2) of the Refugee Convention, the RRT was required to assess whether the applicant had a well-founded fear of returning to each of his countries of nationality. It found that Mr Jong had no well founded fear of persecution with regard to Portugal, and therefore he did not fall within the definition of a refugee.

D. Submissions to the Federal Court

Mr Jong appealed to the Federal Court, arguing that the RRT erred in law on three different grounds, these being:

(i) The RRT was in error in concluding that, as a matter of Portuguese law, Mr Jong is a Portuguese national, such that it was argued that Portugal itself does not consider Mr Jong to be one of its citizens.
(ii) Even if it is found under Portuguese law that Mr Jong is considered to be a Portuguese national, an Australian court should not recognise, or give effect to, that nationality on the grounds that, among other things, international law recognises a right of East Timor to self-determination, and Australia should not recognise Portugal’s former colonial nationality as persisting in East Timorese. Further, it was argued that as Australia has officially recognised Indonesian sovereignty over East Timor, and has argued before the International Court of Justice[6] that Portugal lacks standing to internationally represent the interests of the people of East Timor, then Australia should not be permitted to assert that an East Timorese person is a Portuguese national.
(iii) Even if Mr Jong was to be recognised as a national of Portugal, the RRT was in error as Mr Jong’s nationality was, for the purposes of the Refugee Convention, not ‘effective’.

E. Federal Court Decision

The Full Federal Court comprising Black CJ, Foster and Lehane JJ dismissed the first two grounds of appeal, finding that Mr Jong was a national of Portugal under Portuguese law, and that this nationality was recognised under international law. As a result, Australia also recognised Mr Jong’s Portuguese nationality and this was not inconsistent with Australia’s recognition of Indonesian sovereignty over East Timor. However, the Federal Court agreed with the third submission, finding that the RRT had erred in law in failing to consider adequately whether that nationality was effective.

It is not the aim of this paper to discuss the first two grounds of appeal, and hence it will be assumed that Mr Jong is a Portuguese national under the law of Portugal, and that this nationality should be recognised by an Australian court. Rather, the discussion below will be confined to ascertaining the accuracy of the Federal Court’s enunciation of the principle of “effective nationality” for the purposes of refugee law.

It is proposed here that the Federal Court has incorrectly applied the Refugee Convention, and has formulated a concept of “effective nationality” which does not accord with international authority on the interpretation of Article 1A(2). While the Court claimed otherwise,[7] the determination of “effective nationality” was in fact not considered within the juridical context of the Refugee Convention. This has lead to a confusion of principles and an incorrect conclusion. That is, as the Convention was not interpreted strictly within the light of its object and purpose, the Court incorrectly gave weight to certain evidential factors in the determination of the effectiveness of Mr Jong’s Portuguese nationality; factors which were either irrelevant, or relevant only to other elements of the definition of refugee. In the latter case, the factors should have been considered under their appropriate area so that the Court could have been guided by the existing authority, and in doing so, it is submitted that the Court would have reached the correct outcome.

These propositions will be elucidated in four stages. In Part 2, the juridical context of the Refugee Convention will be considered, to understand the ultimate aims and rationales underlying the Convention. Part 3 will then conduct an examination of the concept of “nationality”, both in the general context of international law, and more specifically for the purposes of refugee law as defined in Part 2. Here it will be considered what are the true confines of the concept of “effective nationality” and which evidential factors should not have been considered under this concept. In ascertaining those misplaced evidential factors, Part 4 will discuss what elements of the refugee definition they are relevant to, and, under this alternative approach, what is the appropriate outcome when so considered in the light of international authority. Finally, in contrast to this strictly legal and technical analysis, Part 5 presents an overview of the moral and political factors that the issue of East Timorese refugees is couched in, and a determination of the appropriate weight that the Court should give these factors.

2. Juridical Context of Refugee Convention

The Federal Court correctly declared that the term “refugee” must be construed in the light of principles of international law, including the Vienna Convention on the Law of Treaties 1969.[8] The central provision of this latter Convention is Article 31, which, as held by the Federal Court,

requires an ordered yet holistic approach to the interpretation of a treaty and while giving primacy to the written text, requires a consideration of the context, object and purpose of the treaty....[9]

The Court did make references to the context, object and purpose of the Refugee Convention,[10] but it is my contention that it did not adequately consider these factors. There are two main principles underlying the entire Refugee Convention, these being the precedence of national protection over international protection, and the humanitarian aim of non-refoulement. These shall be considered separately.

A. Precedence of National Protection

One of the main principles underlying the Refugee Convention is that a person must seek the protection of any state of which he or she is a national before he or she may seek international protection.[11] The UNHCR Handbook on Procedure and Criteria for Determining Refugee Status also makes this clear, stating that, “[w]herever available, national protection takes precedence over international protection”.[12] This is because, under international law, States have no general obligation to admit foreigners or offer them protection,[13] and hence to make an exception to this rule required the strict limitation that there be initial reliance on national protection.[14] This underlying principle gives rise to the multiple nationality provision discussed earlier, such that for those claimants with more than one nationality, the safety in each of those countries must be assessed before refugee status may be awarded internationally. Similarly, the precedence of national protection underlies Article 1E of the Refugee Convention, which provides that precedence must also be given to a State which a person has taken residence in, and the person is recognised there as having the “rights and obligations which are attached to the possession of the nationality of that country”.[15] This deferral to national protection has nothing to do with the conceptual definition of a refugee, but the principle nonetheless is important as it limits the international burden of asylum seekers, encouraging State compliance in genuine cases.

B. Humanitarian Aim: Non Refoulement

The second purpose of the Refugee Convention is embodied in the principle of non-refoulement, which prescribes that no refugee should be returned to any country where he or she is likely to face persecution or torture.[16] has been provided for in Article 33 of the Refugee Convention and has been described by Goodwin-Gill as “the foundation stone of international protection”[18] being the ultimate basis of all refugee law. This being so, no interpretation of any provision of the Refugee Convention should proceed without considering that provision in the light of the overall aim of protection from refoulement. It is important to note at this stage that while the Federal Court decision refers repeatedly to the precedence of national protection over international protection,[19] it did not once call upon the object of non-refoulement to assist in the interpretation of provisions of the Refugee Convention. Rather, the Court only made vague reference to the “humanitarian objects of the Refugees Convention”.[20] I believe this is the fundamental error that the Federal Court makes. It interprets Article 1A(2) with only a general humanitarian aim in mind, rather than making constant reference to the very specific humanitarian aim of non-refoulement. In failing to make reference to this specific aim, the Court gives weight to factors which are essentially irrelevant to that fundamental purpose of the Convention. This loss of focus has caused the Court to propound a concept of “effective nationality” which does not correctly serve the purposes of the Refugee Convention. This shall be discussed in greater detail below.

C. Restrictive Scope of Convention

The aim of this discussion has been to demonstrate that the Refugee Convention is limited in scope. It was drafted in the context of limited international resources, and its provisions could not be too onerous on member states or else fewer states would have been likely to participate in the Convention regime.[21] Hence, individuals must seek the protection of their countries of nationality first, even if they would prefer to reside somewhere else. As stated by Piotrowicz, the “purpose of the Convention is to help those with nowhere to go, not to help those who had somewhere to go but did not want to go there.”[22] Furthermore, the Convention is not aimed at alleviating all kinds of domestic difficulties, such that economic refugees and refugees fleeing from national disasters are not included in the definition.[23] Refugees must also be outside of their country of nationality.[24] This is another limitation designed to make the Convention workable, not too burdensome on State resources, and not imposing on State sovereignty. Finally, the Convention does not aim to place the refugees in States that provide them with all human comforts, but rather the refugees are directed towards those States that can ensure them protection from refoulement. This is not to say that these areas outside the Convention are not important humanitarian objectives. Rather, they should be dealt with in some other way[25] so as not to dilute the valuable rights that are contained in the Convention, and to prevent those rights from falling into political disrepute in a domestic environment that is often hostile towards refugee intake. In doing so, the valuable rights of the Convention will be reserved for those who truly have nowhere to go.

3. Nationality

Having identified the juridical context within which the Refugee Convention should be interpreted, it is now possible to consider the appropriate scope of the requirement that nationality be “effective”. This shall be done in three stages. Firstly, the definition and function of “nationality” in general international law shall be considered. Secondly, I shall discuss the function of “nationality” for the specific purpose of refugee law with particular regard to the aims of the Refugee Convention discussed above. Finally, the scope of the requirement of “effective nationality” which correctly focuses on the purpose of the Convention shall be looked at in comparison to the Federal Court’s specification of the concept.

A. Nationality Under General International Law

While most international law is directly concerned with regulating the activities and position of individuals, it has been primarily a law between states, with states being the principal subjects of that law.[26] To the extent that individuals are not the subjects of international law, nationality is the link between them and international law, such that it is through the medium of nationality that individuals can enjoy benefits from international law. However, a perusal of the main international law texts and authorities soon shows that the concept of “nationality” is very vague and imprecisely defined.[27] Before discussing the reasons for this, it is helpful to identify at least those principles of nationality that are widely agreed upon.

The most widely accepted principle is that it is not for international law but for the internal law of each state to determine who is, and who is not, to be considered its national.[28] Hence, the internal law of a state “creates a very strong presumption both that the individual possesses that state’s nationality as a matter of its internal law and that that nationality is to be acknowledged for international purposes.”[29] However, such an assertion is not conclusive evidence of the fact of nationality for international purposes, and an international tribunal or a national court may be called upon to inquire into the justification and lawfulness of a state’s grant of nationality. This limitation on the international recognition is necessary as the consequences of the unilateral act of attribution of nationality occurs on the international plane, and affects other states.[30] Therefore, according to Brownlie, the strong presumption in favour of internal law is only unseated in “exceptional cases”[31] with the deciding factor being the extent to which the attribution of nationality infringes the rights of the state.[32] Combining these two principles, there is a strong presumption that nationality be recognised internationally, and this is only to be limited to the extent that a State’s rights would be infringed or there is a disservice to an object of international law.

Beyond these two principles of strong presumption of internal laws, and the qualification that some limitations may be applied internationally, there are no universal guiding principles in international law as to what these latter limitations are in an absolute sense. Rather, there is a great diversity of approach to the problems raised by the issue of nationality, “depending on the specific question of municipal law for which the nationality issue [becomes] relevant.”[33] Thus the principle of nationality should not be considered as an issue in isolation,[34] as everything depends on the context in which that issue arises.[35] Therefore, in approaching the question of nationality that went before the Federal Court, it is firstly necessary to consider the concept of nationality in the context of refugee law, before the final step of ascertaining what then is required to ensure that that nationality be “effective”.

B. Nationality for Purposes of Refugee Law

The aims of the concept of “nationality” in the definition of a refugee shall now be examined in the light of the two principal objects of the Refugee Convention outlined above.

(i) Precedence of National Protection

Requiring that there be precedence of national protection in the determination of refugee status does not in any way have a limiting effect on the prerequisite of nationality, beyond that the prospective country considers under internal law that the individual in question is their citizen. In fact, to take account of this object of the Refugee Convention in interpreting the concept of “nationality” actually prescribes that the widest possible boundaries be allotted to “nationality”. The Refugee Convention aims to reduce the burden on a State if there is any other State which considers an individual to be their citizen, and hence in the light of this objective a wide interpretation should be given to “nationality”.

(ii) Protection from Refoulement

While the first purpose of the Refugee Convention does not place any restrictions on the concept of nationality beyond internal attribution, the second fundamental purpose does. To recap, the primary aim of the Convention is to protect refugees from refoulement. To be practical, ensuring non-refoulement has two components: that the displaced person be admitted at the frontier of the State in question, and that once admitted, that State be committed to allowing the individual to remain and not be returned to the country of persecution. The role that the concept of “nationality” plays in each of these components is as follows:

a) Obligation to admit – One of the basic rights attaching to nationality is the right of entry to the State.[36] This obligation is inherent in the concept of nationality, and it is not only a duty owed to the nationals of the State, but it is also a duty owed to other States in that it is an obligation of international law.[37] Therefore, for the purposes of refugee law, the concept of “nationality” must be limited only to those States that are found to have an obligation to admit the individuals in question. Therefore, with regards to Mr Jong, Portugal could only be found to be his country of nationality for the purposes of refugee law if Portugal was found to be, in law, obliged to admit East Timorese at the Portuguese border, and in fact, willing to do so. That Portugal would be legally obliged to allow the entry of East Timorese is evident. As a member State of the Council of Europe, Portugal is subject to the international obligations that the European Union imposes on its member states, one of these being the obligation to admit the entry of nationals.[38] This obligation would also be enforceable before the International Court of Justice, as an accepted principle of international law, so long as Portugal’s domestic laws consider East Timorese to be Portuguese nationals. However, a legal obligation to admit would not be sufficient for the purposes of refugee law, as there must also be found to be a factual willingness to admit. That Portugal is willing to admit East Timorese was clear in the evidence before the Federal Court, it being found that Mr Jong was readily supplied with a one-way visa to enter Portugal so as to verify his East Timorese origin, and have the appropriate documentation issued there. Further, there has not been one reported incident of Portugal refusing to admit any East Timorese at its border. Portugal’s record is also intact with regards to Angola and Mozambique, where displaced persons were not only permitted to enter Portugal, but they were classified as “returnees”, even though they had never set foot on Portuguese soil.[39] This displays a clear commitment to the obligation to permit the entry of nationals.

b) Protection from refoulement – The second basic right which must be attached to nationality for the purposes of refugee law is the right of protection from refoulement. This should be the deciding factor in the determination of the concept of nationality,[40] as an individual who would be expelled from a State and deported back to a country of persecution cannot be considered to be a national of the first State for the purposes of refugee law. Again, Portugal’s situation does not contravene this prerequisite to the recognition of attributed nationality. As a member State of the Council of Europe, Portugal is highly unlikely to return any person to a place of persecution, let alone any people it has consistently maintained at an international level to be its own nationals.[41] Portugal thereby has a strong political interest in providing a place of refuge for East Timorese, and its practice through 1994 and 1995 of offering asylum to East Timorese demonstrators from several Western countries is evidence of this.[42]

C. Federal Court’s Formulation of “Effective Nationality”

There are two main sources of authority which explicitly refer to the concept of effective nationality in refugee law, and the Federal Court relied on both of these in its formulation of what constitutes effectiveness. What these two sources prescribe will therefore be considered so as to see whether they require something more than what has been discussed above. Following this, is an outline of the factors that the Federal Court then deems to be important in ensuring effectiveness, and the resulting confusion is discussed lastly.

(i) Authority

The Federal Court referred to two sources to support their contention that mere formal nationality is not sufficient for the purposes of the Refugee Convention, but that nationality must be “effective”. The first is from the UNHCR Handbook, where it says at paragraph 107,

In examining the case of an applicant with dual or multiple nationality, it is necessary, however, to distinguish between the possession of a nationality in the legal sense and the availability of protection by the country concerned. There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals....As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective.[43]

This passage confirms the discussion above that the inquiry into refugee status does not end with the finding of formal dual nationality, but that the nationality of the country where there is no persecution must be effective. To this, two things are added. Firstly, to be effective, nationality must offer “protection”. This, as discussed, for the purposes of refugee law means that there be an obligation to admit the national onto the territory of the State, and that the State be committed to not returning the person back to the country of persecution. Secondly, the requirement that there be a “refusal of protection” before nationality may be deemed to be ineffective establishes a strong presumption of effectiveness. Therefore, if a State’s internal laws attribute nationality to an individual, for the purposes of refugee law there is a strong presumption that this nationality is effective. To counter this presumption requires, specifically, that the State refuse to admit the individual to their territory, or that the State show a lack of commitment to the principle of non-refoulement. As discussed above, Portugal has fallen foul of neither of these requirements.

The second authority that speaks of “effective nationality” that is relied upon by the Federal Court is the writings of Professor Hathaway, who says,

The major caveat to the principle of deferring to protection by a state of citizenship is the need to ensure effective, rather than merely formal, nationality. It is not enough, for example, that the claimant carries a second passport from a non-persecutory state if that state is not in fact willing to afford protection against return to the country of persecution. While it is appropriate to presume a willingness on the part of a country of nationality to protect in the absence of evidence to the contrary, facts that call into question the existence of basic protection against return must be carefully assessed .... The dilemma here is a logical extension of concern to ensure effective nationality before assessing the adequacy of a refugee claim: only the degree of risk in those states that are known to be obliged to allow the re-entry of the claimant is relevant, as it is to one of those states that the putative refugee would in most cases be sent back if not admitted to the country of refuge.[44]

This passage repeats precisely what was stated above, but in an even clearer format. Again there is the insistence that nationality be “effective” and Hathaway specifies what is required to satisfy this. As stated above, the State must be “obliged to allow the re-entry of the claimant”. Secondly, there is the need to “afford protection against return”, the principle of non-refoulement. Therefore, Hathaway also believes that these two factors are the relevant considerations in the determination of the effectiveness of nationality. Finally, he also emphasises the presumption of effectiveness, which, for rebuttal, requires clear evidence to the contrary.

In summary to this point, the concept of nationality for the purposes of refugee law requires that the State in question be committed to allowing entry of a claimant to the former’s territory, and also to protecting them from return to a country of persecution. The limiting of the concept of effective nationality to these two considerations is supported by the juridical context and purposes of the Refugee Convention, and the explicit authority on the idea of “effective nationality”. What now remains to be seen is what factors the Federal Court deemed to be relevant to the principle of effectiveness, beyond an obligation to admit and a commitment to non-refoulement.

(ii) Factors Considered Relevant by the Federal Court

The Federal Court listed a number of factors that it considered relevant to the issue of the effectiveness of nationality. These were whether Portugal could offer Mr Jong protection in Australia or only in Portugal, whether he was reasonably able to travel to Portugal to obtain that protection, whether he would be admitted to Portugal on arrival, and the administrative procedures Mr Jong would need to undertake to satisfy the Portuguese authorities as to his Portuguese nationality. With respect, apart from considering his right of entry to Portugal, none of the other factors outlined by the Federal Court have any relevance to the effectiveness of Mr Jong’s Portuguese nationality. Apart from being admitted to Portugal, the only crucial consideration is whether Mr Jong will be returned to Indonesia. There should be a presumption that this will not occur, and so the only relevant criteria to effectiveness are hard evidence to show that Mr Jong would be returned. Therefore, Portugal does not need to offer protection in Australia to prevent refoulement to Indonesia, and so this consideration is irrelevant. Similarly the administrative procedures that Mr Jong must go through to establish his nationality are only relevant to the extent that they would prevent his deportation to Indonesia. Hence, as discussed earlier, given the clear attribution of Portuguese citizenship to East Timorese, Portugal’s human rights obligations, and the past practice of providing asylum to East Timorese, “it is quite unjustified to assert that Portugal is going to deport East Timorese to Indonesia”.[45] Irrespective of the internal verification procedures in Portugal, there is no evidence that refoulement would occur, and therefore these procedures are not relevant in the consideration of “effective nationality”. It is not the contention here that the Court completely failed to consider the purpose of non-refoulement in its interpretation of the Refugee Convention. On the contrary, the Court was clearly concerned with ensuring that Mr Jong not be returned to Indonesia. Rather, it is my opinion that this very specific humanitarian aim was not the sole and primary focus of the Court’s analysis in its vague appeal to the humanitarian objectives of the Convention. It is this loss of focus that has allowed irrelevant evidential factors to be considered in the question of effectiveness of nationality. These factors are certainly humanitarian, but they are not relevant to furthering the specific and restricted aims of the Refugee Convention.

4. Alternate Approach: Unable or Unwilling

One of the most surprising assertions made by the Federal Court was that the practical questions raised in the determination of the “effectiveness” of nationality are “parallel to those posed by the expression “unable” in the first paragraph of Article 1A(2)”.[46] That is, according to the Court it is possible to consider the practical issues raised above either in the consideration of the effectiveness of nationality, or in the determination of the willingness or ability of Mr Jong to avail himself of Portuguese protection. This is surprising because, according to this line, one of these elements of the definition of a refugee is redundant and need not have been specified in the Convention. However, more surprising than this is that the Federal Court identified the two considerations as being parallel and then proceeded to analyse the situation under the approach of the effectiveness of nationality, an area with very sparse authority, and did not consider it at length under the element of “willingness or ability”, an area of refugee law with an extensive development and accumulation of authority, opinions and cases.[47] The result has been confusion for two main reasons. As stated already, issues were considered relevant by the Federal Court to the issue of the effectiveness of nationality that did not contribute in any way to the object and purpose of the Convention. This was made possible by the fact that there is very little authority in the area. Secondly, the authority and case law existing under the component of willingness and ability would have directed the Federal Court to the correct conclusion, as precedent keeps the purposes of the Convention in focus.

5. Moral and Political Considerations

The discussion to this point has been strictly legal and technical, and deliberately so. However, it is clear that the issue of Australia’s treatment of East Timorese asylum seekers is steeped in wider moral and political considerations outside of the technical wording of the Refugee Convention. Therefore, reference was made above to the apparent inconsistency between Australia’s official recognition of Indonesian sovereignty over East Timor (to the exclusion of Portugal), and Australia’s simultaneous claim that Portuguese nationality still subsists in East Timorese. From a legal perspective, Australia’s denial of Portuguese sovereignty over East Timor does not prevent it treating the East Timorese as Portuguese citizens. Under the Refugee Convention, regardless of its recognition of Indonesian rule in East Timor, Australia is entitled to assess whether an applicant for refugee status has a well-founded fear of persecution in all the countries of his or her nationality. In the case of East Timorese, this requires the assessment of their Portuguese nationality, irrespective of Australia’s position regarding East Timor. Therefore, if the conclusion is that the East Timorese do have Portuguese nationality, then they cannot be refugees for the purposes of the Convention. Australia’s position on sovereignty is irrelevant; “the two questions are separate and it is open to Australia to deny Portugal’s claims before the International Court of Justice, yet acknowledge the Portuguese citizenship of East Timorese”.[48] The major qualification to this position is that it is strictly legal. Australia has placed its “national interest above moral principle”[49] in co-operating with an Indonesian regime that has perpetrated severe violations of human rights unabated for many years.[50] Successive Australian governments have been particularly unsympathetic to the plight of the East Timorese, and while this is justifiable on legal grounds, it is difficult to rationalise on moral and humanitarian grounds. Added to this is the historically close connection that Australia has had with the East Timorese, fighting alongside them in World War II. For the purposes of this discussion, the question then becomes to what extent should the Federal Court have taken these wider moral and political issues into account in their interpretation of the Refugee Convention?

While the outcome is undoubtedly harsh, it is the opinion here that these wider considerations should hold no weight in a forum such as the Federal Court. It is important here to distinguish between what is morally reprehensible, and what is a justifiable course of action by a domestic court. Successive Australian federal governments have made a conscious political decision to acknowledge Indonesian sovereignty over East Timor, and simultaneously recognise Portuguese nationality subsisting in East Timorese. This is not only legal internationally, but it is the expression of legitimate political will, being within the power of the executive government to make that determination. That this position is morally deficient is unfortunate, to say the least. However, an Australian court cannot give weight to this moral deficiency. To do so would, at the outset, be unconstitutional, flying in the face of legitimate political will. More specifically though, the Court would possibly achieve very little as the Federal Government could establish deportation procedures with Portugal and thereby bypass the “effective nationality” concerns. The Federal Court would have been better to have interpreted the Refugee Convention as propounded above, but then to have engaged in an overview and criticism of the Government’s policy towards East Timor, highlighting the true wider issues in the case. What has happened is that these “real issues” have not in any way been addressed, and there is no greater hope for a true principled stance to be assumed in the near future. While this is a seemingly limited approach, it is the only valid course open to the Court so long as the Government’s position is legally valid, however morally deficient.

6. Conclusion

While the Federal Court speaks of the need to interpret international conventions in the light of their context, object and purpose, the Court itself has failed to adequately do so. The fundamental purpose of the Refugee Convention is to ensure protection from return to countries of persecution. In this way, effective nationality for the purposes of refugee law can mean no more than that the State of nationality will provide safe protection from return. The Federal Court’s vague appeal to “the humanitarian objects of the Refugees Convention”[51] has been unhelpful and possibly counter-productive. A restrictive interpretation of the Convention prescribed here is humanitarian as it prevents the dilution of real and valuable refugee rights.[52] Rather, the Federal Court’s application of these rights to people who do have places to go will possibly limit Australia’s readiness to accept others in worse positions. If possible, those that do not fall strictly under the Convention definition could be accepted under other national asylum policies. However, to use the Refugees Convention for non-refugees will diminish the readiness of governments to grant asylum.[53] The limited nature of the refugee provisions must, therefore, be kept in focus by the court in order to ensure continuing respect and support for the principle of asylum.[54]

[*] BEc LLB (Hons) University of Sydney. I would like to thank Dr Mary Crock for her assistance in an area previously unfamiliar to me. I continue to pray to God that the fate of the East Timorese refugees in Australia will be speedily and effectively improved at the appropriate political level.
[1] [1997] FCA 306; (1997) 143 ALR 695.
[2] Case Concerning East Timor (Portugal v Australia) International Court of Justice Report (1995) 90.
[3] Above n1 at 701.
[4] Australia is a party to each of these conventions, and they are incorporated into Australian law by the Migration Act 1958 (Cth).
[5] Refugee Review Tribunal, Decision N93/00952 of 7 February 1996.
[6] Above n2.
[7] Above n1 at 695.
[8] Ibid.
[9] Ibid. See also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, per McHugh J at 349–352.
[10] Above n1 at 697, 699, 703 and 705.
[11] Hathaway, J, The Law of Refugee Status (1991) at 57. Hathaway footnotes the remarks of a delegate at the Refugee’s Convention: fn158 “[S]o long as a person had one nationality and no reasons not to avail himself of the protection of the government concerned, he could not be considered as a refugee”: Statement of Mr Henkin of U.S.A., U.N. Doc. E/AC.7/SR.160 at 7, August 18, 1950.
[12] Office of the United Nations High Commission for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1992) par 106.
[13] Jennings, R and Watts, A (eds), Oppenheim’s International Law (1992) at 857.
[14] McKenzie, F, “What Have We Done With the Refugee Convention?” (1996) 70 ALJ 813 at 815.
[15] Article 1E of the Refugee Convention.
[16] Goodwin-Gill, G, The Refugee in International Law (1996) at 118.
[17] Helton, A, “What is Refugee Protection?” (1990) 2 International Journal of Refugee Law, Special Issue 119 at 123.
[18] Above n16 at 30.
[19] Above n1 at 702, 705 and 706.
[20] Above n1 at 706.
[21] Above n11 at 31.
[22] Piotrowicz, R, “Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?” (1996) 8 International Journal of Refugee Law 319 at 343.
[23] Above n16 at 3.
[24] Above n17 at 120.
[25] See Ayling, D, and Blay, S, “Australia and International Refugee Law: An Appraisal” [1989] UTasLawRw 2; (1989) 9 U Tas LR 245.
[26] Above n13 at 846.
[27] See Sik, K, “Nationality in Public and Private International Law” (1982) 29 Netherlands International Law Review 100 at 101.
[28] Above n13 at 852.
[29] Id at 856 (emphasis added).
[30] Id at 853.
[31] Brownlie, I, Principles of Public International Law (1990) at 385.
[32] League of Nations, Conference for the Codification of International Law, Bases of Discussion, I, Nationality (1929) V.I. 17, 169 (as cited in Brownlie above n31).
[33] Weis, P, Nationality and Statelessness in International Law (1979) at 193.
[34] Goodwin-Gill, G, International Law and the Movement of Persons Between States (1978) at 49.
[35] Above n31 at 383.
[36] Id at 45.
[37] Id at 46.
[38] “[It] is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between Member States, that a State is precluded from refusing its own nationals the right of entry or residence.”: van Duyn v Home Office [1974] EUECJ R-41/74; [1974] ECR 1337 at 1351.
[39] Plender, R, “Admission of Refugees: Draft Convention on Territorial Asylum” (1977) 15 San Diego LR 45 at 55.
[40] Above n22 at 336.
[41] Above n22 at 332.
[42] Ibid.
[43] Above n12 at par 107.
[44] Above n11 at 59 (emphasis in original text).
[45] Piotrowicz, R, “Dual Nationality and Refugee Status” (1997) 71 ALJ 590 at 593.
[46] Above n1 at 705.
[47] See above n11 at 124–34.
[48] Above n22 at 345.
[49] Kavanagh, R, “Oil in Troubled Waters: The International Court of Justice and East Timor: Case Concerning East Timor” [1996] SydLawRw 4; (1996) 18 Syd LR 87 at 94.
[50] Fonteyne, J, “The Portuguese Timor Gap Litigation Before The International Court of Justice: A Brief Appraisal of Australia’s Position” (1991) 45 Australian Journal of International Affairs 170 at 175.
[51] Above n1 at 706.
[52] Taylor predicts that Australia will have to deal with large scale irregular migration in the future, and that it will be imperative to identify and protect those that qualify under the Refugee Convention: Taylor, S, “Australia’s Interpretation of Some Elements of Article 1A(2) of the Refugee Convention” [1994] SydLawRw 4; (1994) 16 Syd LR 32 at 32–3.
[53] Above n16 at 26.
[54] See Arboleda, E, and Hoy, I, “The Convention Refugee Definition in the West: Disharmony of Interpretation and Application” 5 International Journal of Refugee Law (1993) 66 at 89–90.

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