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University of New South Wales Law Journal Student Series |
YOUNG MEN AT RISK OF FORCED MILITARY RECRUITMENT AND THE REFUGEE CONVENTION: AN AUSTRALIAN PERSPECTIVE
JACOB LANCASTER
There are 25.9 million refugees and 3.5 million asylum seekers displaced worldwide according to the United Nations High Commissioner for Refugees (‘UNHCR’).[1] Instances of forcible military recruitment or conscription have been reported in each of the top ten refugee countries of origin.[2] This paper considers whether Australia’s interpretation of the refugee definition under the 1951 Refugee Convention and the 1967 Protocol (collectively, the ‘Convention’)[3] adequately responds to the protection needs of young men at risk of being forcibly recruited or conscripted (‘young men fleeing warzones’). In particular, it examines the divergent approach taken by Australian courts to interpreting the meaning of ‘persecution’ for reasons of one of the five grounds enumerated in art 1A(2) of the Convention (‘Convention ground’). The narrow approach adopted in many cases to interpreting the refugee definition makes it difficult for young men fleeing warzones to receive protection under the Convention. Consequently, they are at greater risk of being returned to their home countries, where they may be forced to serve in armed conflicts (or punished if they refuse). A broader reading of art 1A(2) that recognises the particular risk of persecution confronting young men fleeing warzones should be adopted in accordance with the humanitarian character of the Convention. Where an asylum seeker falls outside of the Convention but is at risk of significant harm if returned to their country of origin, Australian courts should generally apply complementary protection laws in a way that is favourable to claimants.
Part I of this paper briefly outlines instances of forcible military recruitment across the world and the protections available to asylum seekers and refugees under international law. Part II discusses the Australian jurisprudence on refugee claims made by young men fleeing warzones. Much of this Part is devoted to cataloguing the case law in order to make sense of the different claims that are generally brought by these claimants. Finally, Part III considers how Australia’s complementary protection regime applies to claimants who do not fall under the Convention. This paper does not directly deal with the position of child claimants, since additional considerations may arise.[4]
Young men around the world are being forcibly recruited or conscripted to serve in armed conflicts against their will. For example, in Syria, conscripts who evade military service may be incarcerated by a government that has committed gross human rights violations against its own people.[5] In Eritrea, all men between the ages of 18 and 50 must serve in the military for more than 20 years, while draft-evaders risk facing persecution and human rights violations.[6] Many teenagers in the Democratic Republic of the Congo are being forcibly recruited on all sides by government troops, rebel fighters, and militias.[7] In Iran, Afghan children have been recruited by Iran’s Islamic Revolutionary Guards Corps to fight in the Syrian conflict.[8] While the issue of forcible military recruitment has been recognised by UNHCR on a number of occasions,[9] there are many hurdles to claiming protection under the Convention. This is discussed further in Part II.
Claimants who meet the definition of a ‘refugee’ under the Convention are entitled to a number of rights. These include rights to work,[10] housing,[11] public education,[12] public relief and assistance,[13] social security,[14] freedom of movement,[15] and non-expulsion (subject to national security concerns).[16] Furthermore, both refugees and asylum seekers enjoy a right of non-refoulement (ie non-return)[17] which prohibits states from sending a person back to a place of persecution or to a country that might send them back to a place of persecution. The right of non-refoulement right is enshrined in art 33 of the Convention, as well as other international instruments[18] and international customary law.[19]
This Part examines Australian jurisprudence on protection claims brought by young men fleeing warzones. It first discusses the refugee definition under the Convention, as modified by the Migration Act, before discussing the two different approaches that Australian courts have taken when applying the Convention test. Finally, it explains how these claims are usually dealt with by reference to three categories of claims that generally arise (viz. conscientious objectors, deserters, and imputed political opinion applicants).
A refugee is defined under art 1A(2) of the Convention as a person who has 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.[20]
In Australia, an applicant’s well-founded fear of being persecuted must be causally connected to a Convention ground.[21] Protection will not usually extend to applicants who fear harm that amounts to an indiscriminate or non-selective denial of human rights,[23] such as generalised violence.[24]
Australia has acceded to the Convention,[25] and incorporated many (but not all) of its obligations into the Migration Act.[26] As a signatory to the Vienna Convention, it has committed to complying with (and interpreting)[27] the provisions of the Convention in good faith.[28] Nevertheless, Australia has modified the definition of a refugee (despite being prohibited under art 42 of the Convention),[29] and the circumstances in which persecution will be established.[30]
In Australia, art 1A(2) of the Convention is qualified by s 91R of the Migration Act 1958 (Cth) (‘Migration Act’) in relation to protection visa applications made before 16 December 2014.[31] Section 91R was introduced in 2001 in response to ‘contrived’ refugee claims.[32] Under sub-s (1), the ‘essential and significant reason’ for persecution must be a Convention ground. This persecution must also involve ‘serious harm to the person’ and ‘systematic and discriminatory conduct’ (‘Modified Persecution Definition’).[33]
On 15 December 2014, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (‘Legacy Caseload Act’) was passed. The Legacy Caseload Act made a number of changes to the Migration Act, which apply to applications made on or after 16 December 2014. It codified the refugee definition in s 5H, and the Convention grounds in s 5J. These reasons are consistent with the Convention grounds in art 1A(2) of the Convention,[34] except for the ‘particular social group’ (‘PSG’) ground, which has been further defined under s 5L. The Legacy Caseload Act also repealed s 91R,[35] although it sets out the Modified Persecution Definition in near-identical terms under s 5J(4).
The most relevant Convention grounds to young men fleeing warzones are discussed below.
An applicant may be able to establish a well-founded fear of persecution, as a conscientious objector, if this objection arises because of their religious belief, or actual or imputed political opinion.[36] However, it is essential that the applicant has a real, and not a simulated, belief or opinion.[37]
An applicant may also establish a well-founded fear of persecution on the grounds that they belong to a PSG and face persecution for this reason.[38] In Applicant S, the High Court of Australia held that a determination of whether a group is a ‘PSG’ rests on three elements:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.[39]
For post-16 December 2014 applications, s 5L of Migration Act requires a characteristic to either be innate or immutable, so fundamental to a member’s identity or conscience that they should not be forced to renounce it, or operates to distinguish the group from society. Young men fleeing warzones have claimed to belong to a number of PSGs, including conscientious objectors,[40] deserters/draft-evaders,[41] and able-bodied young men.[42]
A conscientious objector is someone who refuses to undergo military service either because they object to all military service as a pacifist or because they ‘selectively’ object to serving in a particular conflict. This objection may reflect religious beliefs or political opinions.[43] There have been conflicting views within Australian jurisprudence on whether conscientious objectors comprise a PSG. In Timic and Applicant M, it was held that conscientious objectors did not constitute a PSG.[44] In contrast, Lehane J accepted in Mehenni that conscientious objectors, ‘defined by reference to a particular belief or opinion’ could be a PSG, ‘defined as such by some characteristic, attribute, activity, belief, interest or goal that unites its members’.[45]
It is not clear whether deserters/draft-evaders are a PSG. In the Federal Court case of Shaibo, Lindgren J held that ‘deserters’ were not a PSG ‘any more than those who contravene any other law are thereby made such a group for the purposes of the Convention’.[46] In contrast, one year later, the High Court in Israelien appeared to suggest that draft-evaders could comprise a PSG without deciding this point.[47] The Court dismissed Mr Israelian’s appeal on the basis that the tribunal did not make an error of law in concluding that he would not be persecuted if he was returned to his country of origin since any punishment he would face for avoiding his call-up notice would ‘be the application of a law of common application’.[48]
In Applicant S, McHugh J stated that, in Afghanistan, ‘the press ganging of “able-bodied young men” [could] create[] a perception they are a “PSG”.[49] However, his Honour also noted that ‘ordinarily ... “able-bodied young men” ... [are] not a PSG’,[50] and that there must be ‘some objective perception’[51] of group membership ‘independent[] of the persecutory treatment’.[52]
To establish a claim for refugee status in the context of generally applicable conscription laws, an applicant must first establish they are being persecuted for reasons of a Convention ground.[53] Persecution will not be established if the alleged discriminatory treatment giving rise to the claim is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.[54]
In Australia, the phrase ‘persecuted for reasons of’ in arts 1A(2) of the Convention and s 5J(1)(a) of the Migration Act comprises two concepts.[55] First, there must be persecution, which is broadly encompasses serious violations of basic human rights and freedoms.[56] Second, there must be a causal connection between the persecution and a Convention ground.[57] Traditionally, this causal connection has required ‘an element of motivation [held by the persecutors] ... for the infliction of harm’,[58] although other cases have interpreted the persecution element more broadly to include situations where a law disproportionately impacts some persons for a Convention ground.[59]
Generally speaking, the enforcement of a generally applicable law does not amount to persecution because it is indiscriminate.[60] There is a line of authority that a well-founded fear of conscription into armed forces, even if resisted on the grounds of conscientious objection, is not ordinarily a well-founded fear of persecution for a Convention ground.[61] Nevertheless, whether there is persecution will depend on the evidence in a particular case.[62]
Australian courts have adopted two different approaches to interpreting the persecution element in art 1A(2). On one hand, cases such as Mehenni require applicants to establish that their persecutors had actual or imputed knowledge of the relevant Convention ground,[63] and would persecute them at least partly for this reason.[64] On the other hand, another line of cases, starting with Erduran,[65] have adopted a broader approach that considers whether a generally applicable law impacts differently on some persons for reason of a Convention ground.[66] This focuses on the motivation of the conscientious objector rather than the persecutor.[67]
In Mehenni, a tribunal held at first instance that Mr Mehenni was not a refugee because there was no evidence he would be singled out for being a conscientious objector, or that Algerian draft evaders were subjected to excessive or discriminatory punishment.[68] On appeal, his counsel referred to the following passages of the UNHCR Handbook[69] and argued that a conscientious objection to military service, based on political opinion, could give rise to persecution:
169. A deserter or draft evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence ... [for a Convention ground].
170. There are ... also cases where the necessity to perform military service may be the sole ground for a claim to refugee status ... [where] the performance of military service would ... [require] participation in military actions contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171. Not every conviction ... [will suffice] ... Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could ... itself be regarded as persecution.
...
173. The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered ... An increasing number of states have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (ie civilian) service ... In light of these developments, it would be open to contracting states, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.
Lehane J dismissed the appeal on the basis that Mr Mehenni did not demonstrate a well-founded fear of persecution ‘for reason of’ membership of a particular social group.[70] His Honour focused on paragraph 173, above, and stated that ‘contracting states are [not] bound by the Convention to adopt that approach’.[71] His Honour also rejected a decision from the United States which partly relied on the UNHCR Handbook and held that ‘facially neutral policies nonetheless may impermissibly infringe upon the rights of specific groups of persons’.[72] In doing so, Lehane J quoted the Federal Court in Ram:
The link between the key word `persecuted' and the phrase descriptive of the position of the refugee, `membership of a [PSG]', is provided by the words `for reasons of' — the membership of the social group must provide the reason. There is thus a common thread which links the expressions `persecuted', `for reasons of', and `membership of a [PSG]'. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase `for reasons of', and fastens upon the victim's membership of a [PSG]. He is persecuted because he belongs to that group.[73]
The narrow interpretation adopted in Mehenni was used by Walters FM in VCAI.[74] Similarly, in Aksahin v MIMA, French J held:
the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted. The accident that the particular political or ethnic sympathies of a person may cause him or her to disobey a law of general application, does not render the sanction for non-compliance persecution for a Convention reason.[75]
Other cases that have taken this approach include Israelian,[76] Murillo-Nunez,[77] Timic,[78] Mijoljevic,[79] and Trpeski.[80]
The broader approach taken in other cases considers the motivation of the conscientious objector rather than the persecutor.[81] The leading case is Erduran, which drew on observations made in Wang that a law of general application may impact some people differently and therefore amount to persecution for a Convention ground.[82] In Erduran, Gray J held that, where an applicant refuses to undergo compulsory military service, it is necessary to look beyond whether the conscription law is one of general application.[83] His Honour stated:
If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a [PSG] of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. See Wang [citation omitted]. Forcing a conscientious objector to perform military service may itself amount to persecution for a Convention reason.[84]
Accordingly, Gray J held that the enforcement of a conscription law could have a discriminate impact on a PSG comprised of conscientious objectors in Turkey, even if the law was not selectively enforced in a discriminatory manner.[85] Similarly, in Applicant N403, Hill J held that the cause of punishment for desertion was the political opinion underlying an applicant’s conscientious objection to military service and not merely the failure to comply with a law of general application.[86] This approach has also been adopted in VEAZ,[87] VCAD,[88] and MZYTT,[89] although the claimants in each of these cases failed to establish persecution on evidentiary grounds.
In VCAI, Walters FM held that Erduran is not good law because it was overturned by the Full Court on appeal in VFAI,[90] which preferred the approach taken in Mehenni.[91] However, Gray J in VEAZ did not regard anything said by the Full Court in VFAI as contradictory to the views he expressed in Erduran.[92] Gray J was quoted with approval by Kenny J in VCAD,[93] who noted that the Full Court in VFAI had only reversed Gray J’s decision in Erduran because ‘when the Court had regard to the transcript of the hearing before the Tribunal (which was not before Gray J) it was clear that the Tribunal had in fact dealt with the case that had been made to it’.[94]
Nevertheless, the decision in Erduran is difficult to square with the later-enacted Modified Persecution Definition, which provides that persecution must involve systematically and discriminatory conduct, with the essential and significant reason for this conduct being a Convention ground.[95] It also runs contrary to comments made by the High Court in Applicant A, that ‘persecution must be driven by one of the enumerated grounds’.[96] Therefore, it appears that a law of general application will only give rise to persecution where it is ‘implemented or enforced in a discriminatory manner’ for reason of a Convention ground.[97] Indeed, the High Court in Applicant S noted that this would not be inconsistent with the decision in Israelian.[98]
As noted above, a law of general application may be selectively enforced in a discriminatory manner against individuals by reason of a Convention ground, and amount to persecution.[99] If discriminatory treatment is established, the next step is to consider whether the treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.[100] A legitimate object will usually be one that protects or promotes the general welfare of the State and its citizens.[101] In Applicant S, new recruits were being sent to the frontlines of the Taliban’s operations.[102] While the objective of protecting the nation is ordinarily legitimate, the Court held that ‘the position of the Taliban as an authority which was, according to the Tribunal, considered by international standards a ruthless and despotic political body founded on extremist religious tenets must affect the legitimacy of that object’.[103] Alternatively, the Taliban’s conscription policy was not ‘appropriate and adapted, in the sense of proportionate in the means used to achieve that objective’ since its recruitment practices were ‘random and arbitrary’.[104]
Nevertheless, the extent to which applicants will be able to rely on the reasoning in Applicant S is unclear. For example, in Murillo-Nunez, it was held that compulsory conscription into the armed forces of any country ‘by whatever unpleasant government’ does not amount to persecution.[105] Further, although Applicant S draws attention to whether or not a law is ‘appropriate and adapted to achieving some legitimate object’,[106] it determines the legitimacy of an object by reference to how the international community views the government concerned.[107] This is problematic, without further guidance, in light of the inconsistent case law on conscripts who may be forced to commit human rights abuses or act contrary to international humanitarian law,[108] as set out by the Geneva Convention[109] or Nuremberg principles[110] (see Part II.D.1).
Young males fleeing warzones generally fall into one of three camps, below. While these categories are not comprehensive, and overlap in many cases, they provide a useful framework for considering the different issues that arise when establishing a claim for persecution.
First, the applicant may be a conscientious objector who has deserted or is seeking to evade compulsory military service.[111] The Federal Court in MZYTT set out a two-step process for determining cases involving conscientious objectors.[112] First, is the applicant a conscientious objector?[113] Second, can the applicant demonstrate a well-founded fear of persecution? [114] Although hurdles may arise when establishing the existence of a PSG,[115] the main issue is proving discrimination by the persecutor(s) for reasons of a Convention ground.
There is divergent case law with respect to claims brought by conscripts who conscientious object to military service and fear being forced to act contrary to international human rights and/or humanitarian law. In SZAIC, Raphael FM held that ‘fear of punishment for refusing to undertake military service where that service is likely to involve the applicant in a breach of the Nuremberg principles [may] constitute[] persecution for a Convention reason’.[116] In reaching this decision, his Honour referred to para 171 of the UNHCR Handbook (see Part II.C.1(a)),[117] and cited Kevin J Kuzas, who wrote, ‘this paragraph has roots in the Nuremberg Tribunal ... nations cannot decry atrocities and war crimes on the one hand, yet refuse asylum to individuals whose conscience prevented their association with such acts on the other’.[118] Reference was also made to House of Lords decision Sepet v Secretary of State in support of this view.[119]
Despite the decision in SZAIC, other cases involving conscripts who have conscientiously objected to serving in armed forces suspected of committing war crimes have been rejected. For example, in SZAOG, the applicant conscientiously objected to the methods used by the Russian military in the Chechen conflict,[120] including the ‘meaningless and brutality of the slaughter of peaceful citizen [sic] by Russian troops’.[121] Nevertheless, he was unable to establish persecution because there was no independent evidence of discrimination.[122] Similarly, in Shaibo and NAEU, the applicants deserted the Sri Lankan police force because they feared for their lives and were appalled by the torture, murder and rape committed by some police members.[123] Nevertheless, neither applicant was successful. In Shaibo, it was held that police deserters did not comprise a PSG,[124] nor was there evidence that deserters were singled out to serve at the war front[125] (although, even if there was, this would not amount to persecution for reason of their membership of a PSG).[126] The appellant in NAEU, on the other hand, was unable to demonstrate that punishment would be exacted for his desertion by the authorities because of his political opinions.[127]
Second, the applicant may be a deserter who is at risk of being forcibly recruited into the military, either because they are young and able-bodied, or because they have been selected for service under a generally applicable conscription law. The claimed persecution is usually either the risk of death or serious injury at war, or punishment for desertion. Nevertheless, it is widely accepted that a person is not a refugee if their only reason for desertion or draft-evasion is their ‘dislike of military service or fear of combat’.[128] For a claimant to be successful, they must establish a well-founded fear that they would suffer a disproportionately severe punishment for reason of a Convention ground.[129]
Finally, there are applicants who have fled conscription in their home country and are fearful that the authorities will impute to them a political opinion as a result, irrespective of whether they actually hold this opinion.[130] An applicant may have evaded military service either on the grounds of conscientious objection or because they are fearful of combat. It is difficult to establish persecution in these cases. In NAEU, the Federal Court held that ‘no inference of any particular political opinion should be drawn from’ the ‘act of desertion’,[131] and that there must be evidence that punishment for desertion ‘would be enacted, in part or in whole, because of his political opinion’.[132] This requires evidence that the persecutors ‘were aware of the applicant’s claimed political opinion or had imputed such an opinion to him’.[133] Similarly, in Applicant M, the applicant was unsuccessful because he could not demonstrate that the Taliban would impute to him adverse political views and persecute him for this reason.[134] This is because the applicant did not articulate or demonstrate his objection to military service while he was in his country of origin.[135]
One way in which Australian courts could better respond to the protection needs of young men fleeing warzones is through a broader reading of the persecution element in art 1A(2) that considers the impact of general laws of application on persons due to a Convention ground (as occurred in Erduran).[136] This is particularly relevant for claims made by applicants who conscientiously object to military service. A broader reading would better accord with the spirit of the Convention, which ‘is a living instrument’ that ‘must be interpreted in the light of present day conditions’.[137] As noted in Magyari, ‘the right to conscientious objection is an emerging part of international human rights law’ that has roots in both the Universal Declaration of Human Rights and the ICCPR.[138] It has been recognised by both UNHCR and the Council of Europe,[139] and finds support in para 173 of the UNHCR Handbook.[140] As Elihu Lauterpacht and Daniel Bethlehem note, the Convention has an ‘unavowedly humanitarian character’[141] and should not be ‘applied in such a manner as to constitute a denial of human rights as understood at the time of their application’.[142] If we are to understand human rights as encompassing the right to conscientious objection, there is no good reason why claimants in these circumstances should not benefit from the protection afforded by the Convention.
As the frailties of the Convention have come to light, there has been a shift toward ‘complementary protection’ measures that can protect individuals who do not satisfy the test for refugee status.[143] According to Jane McAdam, complementary protection refers to ‘international human rights law-based protection against refoulement (removal), which is additional to that provided by the Refugee Convention’.[144] Many of the cases referred to in Part II arose before the passing of the Migration Amendment (Complementary Protection) Act 2011 (Cth), which introduced a system of complementary protection in Australia.[145] Prior to this, the only protection available to non-refugee claimants who would face serious human rights abuses if returned to their country of origin was the ‘public interest’ power of the Minister for Immigration and Citizenship under s 417 of the Migration Act.[146] This process was lengthy, inefficient, discretionary, and non-reviewable.[147]
Section 36(2) of the Migration Act provides for the granting of protection visas to non-citizens whom Australia owes protection obligations under the Convention and non-citizens whom:
the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.[148]
Despite this, issues subsist with respect to applying the multi-level test in s 36(2).[149] It conflates a number of different tests that have been developed in different instruments, which presents ‘difficulties in interpretation’.[150] Further, it contains exclusions under s 36(2C) that ‘conflate[] the exclusion clauses in art 1F ... with the exception to the principle of non-refoulement in art 33(2) of the Refugee Convention’.[151] While McAdam notes that the use of art 33(2) exclusion criteria under s 36(2C) is not technically prohibited for non-refugees,[152] Lauterpacht and Bethehem argue that the principle of non-refoulement under art 33(2) of the Convention applies equally to both refugees and asylum seekers who are not found to be refugees.[153] Otherwise, States could ‘defeat the operation of the Convention simply by refusing to extend to persons meeting the criteria of Article 1A(2) the formal status of refugees’.[154] This reading of art 33(2) has also been affirmed by the Executive Committee and the UN General Assembly.[155] Nevertheless, even if Australia refuses to grant a protection visa by reason of s 36(2C), ‘it cannot avoid its absolute non-refoulement obligations under international human rights law’.[156]
Courts should apply complementary protection laws in a way that is, as much as possible, favourable to claimants.[157] As Hart argues, ‘[t]his approach is most consistent with the humanitarian principles that have historically underpinned refugee law and that, at least in part, inspired the enactment of laws on complementary protection’.[158] Indeed, the 1951 Conference of Plenipotentiaries expressed its hope that the treatment provided by the Convention would be extended to those ‘who would not be covered by ... its terms’.[159]
The Convention, despite its achievements, remains constrained in Australia by a narrow judicial reading of the refugee definition set out in art 1A(2)[160] which often excludes young men fleeing warzones.[161] Many claims have failed due to the absence of evidence of the motivation of the persecutor, despite being difficult to prove and not explicitly required by the text of the Convention. As noted by Goodwin-Gill, the ‘persecution-oriented’ refugee definition has confused both domestic and international efforts to address the refugee issue.[162] It also reflects the problem that ‘many states attempt to avoid their obligations ... through strained and de-contextualised interpretations of relevant provisions’.[163] One of the barriers to adopting a wider interpretation of art 1A(2) is the Modified Persecution Definition enacted in Australia (see Part II.C.1(c)).[164] Nevertheless, as a signatory to the Vienna Convention, Australia cannot invoke its domestic law as a justification for departing from its obligations under the Convention.[165]
The introduction of complementary protection in Australia is an important response to the ongoing and global challenge of forced displacement. Nevertheless, its success will depend on how it is applied. Courts must interpret legislative provisions ‘in a manner that ensures, as far as possible, that they are consistent with Australia’s international obligations’.[166] Principles such as the refugee definition and non-refoulement have the status of international customary law and therefore bind Australia, irrespective of how they are incorporated into domestic law.[167] Finally, it should be noted that many States, including Australia, have ‘implemented restrictions designed to keep asylum seekers from reaching the border’.[168] Although finding an answer to this issue ‘will [n]ever be entirely non-political’,[169] states must increase the availability of durable solutions for asylum seekers[170] and give effect to their obligations under international law.
Note: columns entitled ‘Country of Asylum’ and ‘Persons’ have been reproduced from UNHCR.[171] All reports were made within the last four years.
|
Country of Origin
|
Persons
|
Reports of Conscription / Forcible Recruitment
|
|---|---|---|
|
Syrian Arab Republic
|
478,170
|
Yes[172]
|
|
Democratic Republic of Congo
|
148,554
|
Yes[173]
|
|
Central African Republic
|
94,581
|
Yes[174]
|
|
South Sudan
|
92,537
|
Yes[175]
|
|
Afghanistan
|
86,940
|
Yes[176]
|
|
Sudan
|
60,763
|
Yes[177]
|
|
Somalia
|
55,158
|
Yes[178]
|
|
Iraq
|
48,736
|
Yes[179]
|
|
Eritrea
|
45,831
|
Yes[180]
|
|
Nigeria
|
22,008
|
Yes[181]
|
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[1] ‘Figures at a Glance’, UNHCR (online, 19 June 2019) <https://www.unhcr.org/en-au/figures-at-a-glance.html>.
[2] See Appendix.
[3] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) read together with the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Convention’).
[4] See, eg, Jane McAdam, ‘Seeking Asylum Under the Convention on the Rights of the Child: A Case for Complementary Protection’ (2006) 14 International Journal of Children’s Rights 251.
[5] Patrick Strickland, ‘Why is the World Afraid of Young Refugee Men?’, AlJaZeera (Editorial, 21 June 2016) <https://www.aljazeera.com/indepth/features/2016/05/world-afraid-young-refugee-men-160530110614219.html>.
[6] Christiano D’Orsi, ‘Eritrea Has Slashed Conscription. Will It Stem the Flow of Refugees?’, The Conversation (Editorial, 9 August 2018) <https://theconversation.com/eritrea-has-slashed-conscription-will-it-stem-the-flow-of-refugees-100549>.
[7] Celine Schmitt, ‘Young Congolese Men Fear Forced Recruitment, Flee to Uganda’, UNHCR (Web Page, 24 December 2012) <https://www.unhcr.org/en-au/news/stories/2012/12/50d85a046/young-congolese-men-fear-forced-recruitment-flee-uganda.html>.
[8] ‘Iran: Afghan Children Recruited to Fight in Syria’, Human Rights Watch (Web Page, 1 October 2017) <https://www.hrw.org/news/2017/10/01/iran-afghan-children-recruited-fight-syria>.
[9] UNHCR, ‘A Thematic Compilation of Executive Committee Conclusions’ (Compilation, 7th edition, June 2014) 230–2 discussing Refugee Children No. 47 (XXXVIII) 1987, UN Doc A/42/12/Add.1 (12 October 1987); General Conclusion on International Protection No. 55 (XL) 1989, UN Doc A/44/12/Add.1 (13 October 1989); Refugee Children No. 59 (XL) 1989, UN Doc A/44/12/Add.1 (13 October 1989); Personal Security of Refugees No. 72 (XLIV) 1993, UN Doc A/48/12/Add.1 (8 October 1993); General Conclusion on International Protection No. 74 (XLV) 1994, UN Doc A/49/12/Add.1 (7 October 1994); Refugee Children and Adolescents No. 84 (XLVIII) 1997, UN Doc A/52/12/Add.1 (17 October 1997); Conclusion on International Protection No. 85 (XLIX) 1998, UN Doc A/53/12/Add.1 (9 October 1998); General Conclusion on International Protection No. 87 (L) 1999, UN Doc A/54/12/Add.1 (8 October 1999); Conclusion on Registration of Refugees and Asylum-Seekers No. 91 (LII) 2001, UN Doc A/56/12/Add.1 (5 October 2001); Conclusion on the Civilian and Humanitarian Character of Asylum No. 94 (LIII) 2002, UN Doc A/57/12/Add.1 (8 October 2002); Children at Risk No. 107 (LVIII) 2007, UN Doc A/AC.96/1048 (10 October 2007).
[10] Convention (n 6) art 17.
[11] Ibid art 21.
[12] Ibid art 22.
[13] Ibid art 23.
[14] Ibid art 24.
[15] Ibid art 26.
[16] Ibid art 32.
[17] Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Erika Feller, Volker Türk and Frances Nicholson, Refugee Protection in International Law (Cambridge University Press) 87, 116, 118.
[18] 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (A/RES/39/46, 10 Dec 1984) art 3; International Covenant on Civil and Political Rights, opened for signature [16 December 1966], 999 UNTS 171 (entered into force 23 March 1976) arts 2, 6, 7; see also UN Human Rights Committee General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004); UN Human Rights Committee General Comment No. 2 (1992), UN Doc HRI/GEN/1/Rev.1 (28 July 1994) [9].
[19] Lauterpacht and Bethlehem (n 22) 90–2, 143 discussing the Asian-African Legal Consultative Organization, Bangkok Principles on the Status and Treatment of Refugees, 40th sess, 24 June 2001 art III(1); Declaration on Territorial Asylum, UN Doc A/RES/2312/(XXII) (14 December 1967); Organization of Africa Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974) art II(3); Organization of American States (OAS), American Convention on Human Rights, opened for signature 22 November 1969, OAS Treaty Series No. 35, 9 ILM 673 (entered into force 18 July 1978); 1984 Cartagena Declaration on Refugees, OAS/Ser.L/V/II.66, Doc 10.1 (19–22 Nov 1984). See also UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (26 January 2007).
[20] Convention (n 6) art 1A(2).
[21] See, eg, Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565, 568 (‘Ram’); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 284 (‘Applicant A’); 22 Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 [102] (‘Haji Ibrahim’). See also Administrative Appeals Tribunal, Guide to Refugee Law in Australia (online at February 2019) ‘5 Refugee Grounds and Nexus’ 2 (‘AAT Chapter 5’).
[23] Applicant A (n 26) 232–3; see also Administrative Appeals Tribunal, Guide to Refugee Law in Australia (online at February 2019) ‘11 Application of the Refugees Convention in Particular Situations’ 3 (‘AAT Chapter 11’).
[24] Haji Ibrahim (n 26) [141] (Gummow J, Gleeson CJ and Hayne J agreeing); AAT Chapter 11 (n 27) 3.
[25] UNHCR, ‘States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol’ (Note, April 2015) <https://www.unhcr.org/3b73b0d63.html>.
[26] ‘Refugee and Asylum Seeker Law Research Guide’, University of Melbourne (Web Page <https://unimelb.libguides.com/refugee_law/australia>.
[27] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 31 (‘Vienna Convention’).
[28] Ibid art 26.
[29] See Jane McAdam et al, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (31 October 2014) <https://www.kaldorcentre.unsw.edu.au/sites/default/files/Final%20legacy%20caseload%20sub%2031%2010%2014%20SENT.pdf> 14.
[30] Migration Act s 91R(1) (for pre-16 December 2014 applications) and s 5J(4) (for post-16 December 2014 applications). See also Administrative Appeals Tribunal, Guide to Refugee Law in Australia (online at June 2018) ‘4 Persecution’ 2.
[31] Section 91R was added to the Migration Act by the Migration Legislation Amendment Act (No. 6) 2001 (Cth).
[32] Jane McAdam and Fiona Chong, ‘Complementary Protection in Australia Two Years On: An Emerging Human Rights Jurisprudence’ (2014) 42 Federal Law Review 441, 479 citing Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30, 420 (Philip Ruddock); Commonwealth, Parliamentary Debates, Senate, 24 September 2001, 27, 603 (Robert Hill).
[33] Migration Act s 91R(1)(b).
[34] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 10, 171; AAT Chapter 5 (n 26) 2.
[35] Legacy Caseload Act sch 5 s 12.
[36] See, eg, Applicant VEAZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1033 [6], [26] (‘VEAZ’); Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814; [2002] 122 FCR 150 [28] (‘Erduran’); SZAOG v Minister for Immigration [2004] FMCA 125 [46] (‘SZAOG’).
[37] Applicant N403 of 2000 v Minister for Immigration and Multicultural Affairs [2000] FCA 1088 [23] (‘Applicant N403’). See also Magyari v Minister for Immigration and Multicultural Affairs [1997] FCA 417; (1997) 50 ALD 341, 343 (‘Magyari’).
[38] SZAOG (n 40) [46].
[39] Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387, 400 [36] (Gleeson CJ, Gummow and Kirby JJ) (‘Applicant S’).
[40] Erduran (n 40) [28]; SZAOG (n 40) [46].
[41] See Magyari (n 41) 341–2; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 354–5 [97] (Gummow, Hayne and McHugh JJ) (‘Israelian’) cited in Applicant S (n 43) 414 [81] (McHugh J).
[42] Applicant S (n 43).
[43] Mehenni v Minister for Immigration and Multicultural Affairs [1999] FCA 789; (1999) 164 ALR 192, 197–8 [17] (Lehane J) (‘Mehenni’).
[44] Minister for Immigration and Multicultural Affairs v Applicant M [2002] FCAFC 253 [21] (‘Applicant M’); Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1730 (‘Timic’).
[45] Mehenni (n 47) 197–8 [17] (Lehane J).
[46] Minister for Immigration and Multicultural Affairs v Shaibo [2000] FCA 600 (‘Shaibo’).
[47] Israelian (n 45) 354–5 [95]–[97] (Gummow, Hayne and McHugh JJ) discussed in Applicant S (n 43) 414 [81] (McHugh J).
[48] Israelian (n 45) 342 [55], 354–5 [95]–[97].
[49] Applicant S (n 43) 411–2 [72] (McHugh J).
[50] Ibid 412 [72]–[73] (McHugh J).
[51] Ibid 412 [75] (McHugh J).
[52] Ibid.
[53] Convention art 1A(2); Migration Act ss 5H, 5J.
[54] Applicant A (n 26) 258 (McHugh J) quoted in Applicant S (n 43) 402 [43] (Gleeson CJ, Gummow and Kirby JJ). See also Chen Shi Hai by his next friend Chen Ren Bing v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, French J, 5 June 1998) (‘Chen Shi Hai’) [28] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 [45] (McHugh and Kirby JJ) (‘Applicant S395’). See also AAT Chapter 11 (n 27) 4, 10–11 n 49, 21.
[55] Chen Shi Hai (n 58) 9, 342. See also AAT Chapter 5 (n 26).
[56] Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 [108]-[111] (Kirby J).
[57] Chen Shi Hai (n 58) 9.
[58] Ram (n 26) 568 approved in Applicant A (n 26) 284; see also AAT Chapter 5 (n 26) 4.
[59] Erduran (n 40); Applicant N403 (n 41) [23]; VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005 [31]–[35] (Kenny J) (‘VCAD’); VEAZ (n 40) [25] (Gray J); VWPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1552 (‘VWPZ’).
[60] Applicant A (n 26) 258 (McHugh J) citing Yang v Carroll (1994) 852 F Supp 460, 467; Chen Shi Hai (n 58) [20]; AAT Chapter 11 (n 27) 5.
[61] Mijoljevic v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 834 [23] (‘Mijoljevic’) referring to Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150 (‘Murillo-Nunez’); Timic (n 45). See also Mehenni (n 46); Trpeski v Minister for Immigration and Multicultural Affairs [2000] FCA 841 (‘Trpeski’); Davidov v SSHD [2005] ScotCS CSIH 51 (Scottish Court of Session, 23 June 2005) [5] (Lord Hamilton); Israelian (n 45); AAT Chapter 11 (n 27) 15. Mijoljevic was cited with approval in Applicant S (n 43) [103] (Callinan J).
[62] Minister for Immigration and Multicultural and Indigenous Affairs v WALU [2006] FCA 657; AAT Chapter 11 (n 27) 15; Mohamed v Minister for Immigration and Multicultural Affairs [1998] FCA 485; (1998) 83 FCR 234, 247.
[63] See, eg, Mehenni (n 46) [22]–[23]; NAEU of 2002 v MIMIA [2002] FCAFC 259 [15] (‘NAEU’); Israelian (n 45).
[64] NAEU (n 67); AAT Chapter 11 (n 27) 18.
[65] Erduran (n 40).
[66] See also Applicant N403 (n 41) [23]; VCAD (n 63) [31]–[35] (Kenny J); VEAZ (n 40) [25] (Gray J); VWPZ (n 63); AAT Chapter 11 (n 27) 19 n 90.
[67] See AAT Chapter 11 (n 27) 18.
[68] Mehenni (n 46) 200–201 [22].
[69] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol, UN Doc HCR/IP/4/Eng/Rev.1 (2nd ed, 1992) [169]–[173] (‘UNHCR Handbook’).
[70] Mehenni (n 46) 197–8, 200–201 [22] citing Israelian (n 45); Magyari (n 41) 25–7 (O’Loughlin J).
[71] Mehenni (n 46) 199 [19].
[72] Canas-Segovia v Immigration and Naturalisation Service [1990] USCA9 341; 902 F 2d 717, 723 (9th Cir 1990) (‘Canas-Segovia’).
[73] Ram (n 26) 568 (Burchett J with whom O’Loughlin and Nicholson JJ agreed) quoted in Mehenni (n 46) [21]–[22] and SZAOG (n 40) [15].
[74] VCAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 443 [36]–[37] (‘VCAI’).
[75] Aksahin v Minister for Immigration and Multicultural Affairs [2000] FCA 1570 [25] referring to Chen Shi Hai (n 58); AAT Chapter 11 (n 27) 16.
[76] Israelian (n 45).
[77] Murillo-Nunez (n 65).
[78] Timic (n 45).
[79] Mijoljevic (n 65) [20]–[23].
[80] Trpeski (n 65).
[81] Applicant N403 (n 41); Erduran (n 40) cited in AAT Chapter 5 (n 26) 7.
[82] Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 105 FCR 548 [63], [65] (‘Wang’) cited in Erduran (n 40) 156–7 [28] and VEAZ (n 40) [26].
[83] Erduran (n 40) 156 [28].
[84] Ibid 156–7 [28] citing Wang (n 86) 563 [65] (Merkel J).
[85] Erduran (n 40); AAT Chapter 11 (n 27) 9.
[86] Applicant N403 (n 41) [23].
[87] VEAZ (n 40) [21]–[22] (Gray J).
[88] VCAD (n 63) [33].
[89] MZYTT v Minister for Immigration and Citizenship (2013) 141 ALD 301 [22] (‘MYZTT’).
[90] VCAI (n 78) [36].
[91] Ibid.
[92] VEAZ (n 40) 1033 [21]–[22] (Gray J).
[93] VCAD (n 63) [33] citing VEAZ (n 40) 1033 [21]–[22] (Gray J).
[94] Ibid.
[95] See AAT Chapter 11 (n 27) 9 n 45; Migration Act s 91R(1) (for pre-16 December 2014 applications) and s 5J(4) (for post-16 December 2014 applications).
[96] Applicant A (n 26) 242 (Dawson J) discussing Ram (n 26) 569 (Burchett J); see also Applicant A (n 27) 264 (McHugh J) discussing Chan [1993] 3 FC 675, 692–3.
[97] Applicant S (n 43) 402 [42]
[98] Ibid.
[99] Chen Shi Hai (n 58) [21]; Applicant S (n 43) [42]; AAT Chapter 11 (n 27) 8.
[100] Applicant A (n 26) 258 (McHugh J) quoted in Applicant S (n 43) 402 [43]–[44] (Gleeson CJ, Gummow and Kirby JJ). See also Chen Shi Hai (n 58) [28] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Appellant S395 (n 58) [45] (McHugh and Kirby JJ); AAT Chapter 11 (n 27) 10–11 n 49.
[101] Ibid.
[102] Applicant S (n 43) 404 [47] (Gleeson CJ, Gummow and Kirby JJ).
[103] Ibid.
[104] Ibid [48].
[105] Murillo-Nunez v MIEA (1995) 63 FCR 150, 159 citing Stoljkovic v Minister for Immigration and Ethnic Affairs (1993) 33 ALD 379; UNHCR Handbook (n 73) [167].
[106] Applicant A (n 26) 258 (McHugh J) quoted in Applicant S (n 43) 402 [43] (Gleeson CJ, Gummow and Kirby JJ). See also Chen Shi Hai (n 58) [28] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Appellant S395 (n 58) [45] (McHugh and Kirby JJ); AAT Chapter 11 (n 27) 10–11 n 49.
[107] Applicant S (n 43) 404 [47] (Gleeson CJ, Gummow and Kirby JJ).
[108] SZAIC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 103 [20] (‘SZAIC’) cf SZAOG (n 40) and Shaibo (n 52); see AAT Chapter 11 (n 27) 21.
[109] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [Protocol II], opened for signature 12 December 1977, 124 UNTS 609 (entered into force 8 June 1977) art 13.
[110] ‘Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal’ (1950) II Yearbook of the International Law Commission 364, 374.
[111] See, eg, Magyari (n 41) 342.
[112] MZYTT (n 93).
[113] Ibid.
[114] Ibid.
[115] See Part II.B.2.
[116] SZAIC (n 112) [20].
[117] UNHCR Handbook (n 73) [171].
[118] SZAIC (n 112) [17] quoting Kevin J Kuzas, ‘Asylum for Unrecognised Conscientious Objectors to Military Service: Is There a Right Not to Fight?’ (1991) 31 Virginia Journal of International Law 441, 460 citing Karen Musalo, ‘Swords into Ploughshares: Why the United States Should Provide Refuge to Young Men Who Refuse to Bear Arms for Reasons of Conscience’ (1989) 26 San Diego Law Review 849, 860.
[119] SZAIC (n 112) [19] quoting Sepet v Secretary of State [2003] UKHL 15; [2003] 3 All ER 304, 311 citing Zolfagharkhani v Canada (Minister of Employment and Immigration) [1993] FC 540, Ciric v Canada (Minister of Employment and Immigration) [1994] 2 FC 65, Canas-Segovia (n 76), UNHCR Handbook (n 73) [168], [171].
[120] SZAOG (n 40) [10].
[121] Ibid [8].
[122] Ibid [21].
[123] Shaibo (n 52) [29]; NAEU (n 67) [4].
[124] Shaibo (n 52) [35].
[125] Ibid [33].
[126] Ibid [36].
[127] NAEU (n 67) [18].
[128] Magyari (n 41) 342. See also UNHCR Handbook (n 73) [167].
[129] Israelian (n 45) [55] referring to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 388, 429–30 (‘Chan’) and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570 (‘Guo’). See also UNHCR Handbook (n 73) [169]; VCAI (n 78); Timic (n 45); Shaibo (n 52); AAT Chapter 11 (n 27) 17.
[130] NAEU (n 67) [14] citing Guo (n 133) and Chan (n 133).
[131] NAEU (n 67) [15].
[132] Ibid.
[133] Ibid.
[134] Applicant M (n 45) [16].
[135] Applicant M (n 45) [16].
[136] Erduran (n 40).
[137] See Tyrer v United Kingdom (1979–80) [1978] ECHR 2; 2 EHRR 1 [31] discussed in Jane McAdam, ‘Australian Complementary Protection: A Step-By-Step Approach’ [2011] SydLawRw 29; (2011) 33 Sydney Law Review 687, 702 and Lauterpacht and Bethlehem (n 22) 105. See also Soering v United Kingdom [1989] ECHR 14; (1989) 11 EHRR 439 [102].
[138] Magyari (n 41) 342 quoting James C Hathaway and Michelle Foster, The Law of Refugee Status (Butterworths Canada, 1991) 182–3 citing Bill Frelick, ‘Conscientious Objectors as Refugees’ in Virginia Hamilton (ed), World Refugee Survey: 1986 in Review (US Committee for Refugees, 1987) 31.
[139] Magyari (n 41) 342 quoting Hathaway and Foster (n 143) 182–3 citing Frelick (n 143) 31.
[140] UNHCR Handbook (n 73).
[141] Lauterpacht and Bethlehem (n 22) 106.
[142] Gabcikovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, 114–15 discussed in Lauterpacht and Bethlehem (n 22) 105.
[143] Hart (n 162) 175–6 citing UNHCR, Note on International Protection, UN Doc A/AC.96/830 (9 June 2000) [32].
[144] McAdam, ‘Australian Complementary Protection: A Step-By-Step Approach’ (n 142) 687.
[145] Ibid.
[146] Ibid 689.
[147] Ibid.
[148] Migration Act s 36(2)(aa). See McAdam and Chong (n 36) 445.
[149] Hart (n 162) 179.
[150] McAdam, ‘Australian Complementary Protection: A Step-By-Step Approach’ (n 142) 694 citing Michelle Foster and Jason Pobjoy, Submission No 9 to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Inquiry into the Migration Amendment (Complementary Protection) Bill 2009 (28 September 2009) 14.
[151] McAdam, ‘Australian Complementary Protection: A Step-By-Step Approach’ (n 142) 727.
[152] Ibid.
[153] Lauterpacht and Bethlehem (n 22) 116, 118.
[154] Ibid 116.
[155] Ibid 117 citing Non-Refoulement Conclusion No. 6 (XXVIII) 1977, UN Doc A/32/12/Add.1 (12 October 1977) [c]; General Conclusion on International Protection No. 79 (XLVII) 1996, A/51/12/Add.1 (16 October 1996) [j]; General Conclusion on International Protection No. 81 (XLVIII) 1997, UN Doc A/52/12/Add.1 (17 October 1997) [i]; Office of the United Nations High Commissioner for Refugees, GA Res 52/103, UN Doc A/RES/52/103 (9 February 1998) [5]; Office of the United Nations High Commissioner for Refugees, GA Res 53/125, UN Doc A/RES/53/125 (12 February 1999) [5].
[156] McAdam, ‘Australian Complementary Protection: A Step-By-Step Approach’ (n 142) 727.
[157] Naomi Hart, ‘Complementary Protection and Transjudicial Dialogue: Global Best Practice or Race to the Bottom?’ (2016) 28(2) International Journal of Refugee Law 171, 173.
[158] Hart (n 162) 174 citing Sandra Lavenex, ‘The Europeanization of Refugee Policies: Normative Challenges and Institutional Legacies’ (2001) 39 Journal of Common Market Studies 851, 852; Jane McAdam, ‘Regionalizing International Refugee Law in the European Union: Democratic Revision or Revisionist Democracy’ (2007) 38 Victoria University of Wellington Law Review 255, 266.
[159] Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, UN Doc A/CONF.2/108/Rev.1 (25 July 1951) 9.
[160] Hart (n 162) 175.
[161] Ibid.
[162] Guy S Goodwin-Gill, ‘The Politics of Refugee Protection’ (2008) 27(1) Refugee Survey Quarterly 8, 21.
[163] Guy S Goodwin-Gill, ‘The Continuing Relevance of International Refugee Law in a Globalized World’ (2015) 10 International Human Rights Law Review 25, 33.
[164] See AAT Chapter 11 (n 27) 9 n 45; Migration Act s 91R(1) (for pre-16 December 2014 applications) and s 5J(4) (for post-16 December 2014 applications).
[165] Vienna Convention (n 31) art 27; see also McAdam et al, Submission to Senate Legal and Constitutional Affairs Legislation Committee (n 33) 14.
[166] ‘Refugee and Asylum Seeker Law Research Guide’ (n 30) citing Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273, 287.
[167] ‘Refugee and Asylum Seeker Law Research Guide’ (n 30) citing DW Greig, ‘The Protection of Refugees and Customary International Law’ [1980] AUYrBkIntLaw 4; (1984) 8 Australian Yearbook of International Law 108, 128, 133–6.
[168] Randall Hansen, ‘Borders, Refugees and Citizenship’ in Elena Fiddian-Qasmiyeh et al (eds), The Oxford Handbook of Refugee and Forced Migration (Oxford University Press, June 2014) 253, 262.
[169] Guy S Goodwin-Gill, ‘The Politics of Refugee Protection’ (n 167) 8, 21.
[170] See Kaldor Centre, Principles for Australian Refugee Policy (Report, June 2019).
[171] UNHCR, UNHCR Projected Global Resettlement Needs (Report, 2018) 59.
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