Alternative Law Journal
The first recorded words spoken to a foreigner in Australia are ‘warra warra’ — ‘go away’. This cry, coming from Aborigines on the shore, was heard by Captain John Hunter on the Sirius. In the current national political climate of near hysteria over uninvited boat arrivals, the same cry (or, at least, its English translation) has been heard once again loud and clear — although the irony of the situation appears to be lost on those who pick and choose their history.
The Border Protection Legislation Amendment Act 1999 (BPLAA) was passed by federal parliament late last year amidst a steady flow of xenophobic vilification of asylum seekers, in which those who risked their lives on leaky boats from Indonesia with the hope of entry to Australia were linked with kidnapping, fraud, vice, extortion, contract killing, slave trading and child prostitution (to name but a few). In any event, we were told, they were all queue-jumpers, forum shoppers, and economic refugees — and ready to descend en masse.
The BPLAA built upon changes to the Migration Act introduced earlier in the year, which sought to address the issue of unlawful arrivals in a number of ways. There were sharp increases in the penalties for those involved in bringing people to Australia, and increased powers available for law enforcement. For asylum seekers, a range of unashamedly punitive changes sought to restrict not only their right to stay in Australia, and the conditions on which they could stay, but also their very right to apply for a ‘protection visa’ and have their claim considered.
Central to the changes for asylum seekers was the policy that people with access to protection from other countries should not be entitled to seek protection here. This is uncontroversial in principle — it is a policy underlying the approach towards refugees in the Refugees Convention itself. In practice, however, a fine line divides burden sharing by countries dealing with large movements of people across borders, and obligation avoidance.
Arguably, avoidance is the overwhelming aim and consequence of the changes. Australia’s current approach to refugees now starts with the question: how can we get rid of this person? This approach runs counter to the purpose and the spirit of the Refugees Convention, and raises serious questions about Australia’s good faith in dealing with refugees. Relaxed and comfortable Australia is, it seems, rolling out the razor wire.
The changes introduced by the BPLAA for refugees built, in part, on a number of developments in the law dating back to the Migration Reform Act 1992 (Cth). Prior to 1992, eligibility for a protection visa required a decision maker to ask whether or not a person was a refugee within the meaning of the Refugees Convention. The 1992 changes replaced this with the question: does Australia owe ‘protection obligations under the Refugees Convention’ to an applicant?
Initially, this seems to have made little change to the approach taken by our courts and tribunals — ultimately, a country will only have protection obligations under the Convention if a person is, in fact, a refugee. However, the effect of the change was to shift the focus away from the applicant and his or her claims, and onto whether or not they were Australia’s ‘problem’.
In a string of cases from 1997, the courts began to wind back the limits of Australia’s obligations under the Convention in cases where applicants had access to protection elsewhere. This followed developments in Europe, where the ‘safe third country’ doctrine was also being used to minimise the protection obligations owed to people who had passed through other countries before making a claim for asylum.
Independently of this line of cases were two Federal Court authorities arising out the tooth-and-nail struggle to deny responsibility for East Timorese refugees, and have them sent to Portugal. The approach taken by the courts in those cases reflected a more cautious approach — and, in the view of the author, one which grasped the basic humanitarian objectives of the Refugees Convention as a whole, and the context of Australia’s international human rights obligations.
The battle for the East Timorese in Australia is still being waged but the changes introduced by the BPLAA have made sure that in terms of the principles applicable to refugee cases, the war has been won by the Minister.
The Full Federal Court in Thiyagarajah, developed the distinction between determining whether or not someone is a refugee, and whether or not Australia owes that person protection obligations. The Court focused on the concept of non-refoulement — the principle that a person must not be returned to a country in which they will face persecution.
Mr Thiyagarajah, a Sri Lankan asylum seeker, had previously been granted refugee status by France, and been given permanent residence there. The Court found that it would not be in breach of Australia’s obligations to return a person to another country in which they had already been granted refugee status, and would receive ‘effective protection’ there, including the right to reside, enter and re-enter. Effective protection was said to mean protection from refoulement to a person’s country of origin, should that person happen to be a refugee.
The Court also held that where effective protection was found to be available, there was no obligation that any consideration be given to whether the person was, in fact, a refugee in those circumstances.
Whether or not it sensed what lay within the decision, the Court carefully limited its analysis to the facts before it, and made it clear that the outer boundaries of the principle of effective protection were to be charted by principles of international law. On its face, the decision is consistent with the approach to refugees taken by the Convention as a whole. As noted above, the Convention recognises the principle that people who can avail themselves of protection in the form of nationality or de facto nationality are not entitled to international protection as refugees. However, later cases seized on the reasoning of Thiyagarajah and extended its application significantly beyond these limits.
In Rajendran it was held that Australia did not owe protection obligations to a person who had the right of permanent residence in a third country, even if the person had not been recognised there as a refugee.
It was then held in Gnanapiragasam that there need not be a right of permanent residence in a safe third country for Australia to be able to deflect a person there. If a person had a right to re-enter a country and could there make an application for refugee status, that would suffice.
Similarly in Kabail, the Court found there was no requirement that there be a ‘significant connection’ between a person and a country to which they were to be deflected. All that mattered was that a person had the ‘opportunity to attain refugee status’ in some other place. His Honour, RD Nicholson J noted, without a trace of irony it would seem, that the relevant evidence might include evidence of ‘generosity in grant of the status by the third country’.
It was also found to be unnecessary for the third country to which a person was to be returned to be a signatory to the Convention, although such a factor may be relevant in considering effective protection; Al-Sallal. The applicable test was whether or not, ‘as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being returned to his original country’.
The Court in Al-Sallal affirmed the view that non- refoulement is the core obligation of the Convention, describing it as the ‘engine room’ of the Convention. The concern with this approach is that it puts the ‘problem’ before the people. Rather than considering Australia’s obligations to refugees in the context of finding humanitarian solutions, it seeks primarily to minimise Australia’s exposure.
It is yet to be argued that Australia would be fulfilling its Convention obligations by sending asylum seekers to a desert island, from where there would be no risk of being returned to a place where they would be persecuted — but such is the logic of the approach. What the approach in these cases loses sight of is that the object and purpose of the Convention is a fundamentally humanitarian one. As Kirby J noted in Chen Shi Hai:
While courts of law, tribunals and official must uphold the law, they must approach the meaning of the law relating to refugees with its humanitarian purpose in mind. The Convention was adopted by the international community, and passed into Australian domestic law, to prevent the repetition of the affronts to humanity that occurred in the middle of the twentieth century and earlier. At that time Australia, like most other countries, substantially closed its doors against refugees. The Convention and the municipal law giving it effect are designed to ensure that this mistake is not repeated.
In the climate of hysteria in which the BPLAA was introduced, it is perhaps no surprise that the legislation takes the approach of the courts following Thiyagarajah to new lows. The substance and shortcomings of the legislation are considered below.
In contrast to, although not necessarily inconsistent with, the reasoning in the above cases, the Federal Court set a more careful course in its decisions involving East Timorese asylum seekers.
One of the undecided issues in those cases is whether or not Australia can rely on Portugal to take those asylum seekers who fled to Australia as long as 10 years ago. The connection claimed by the Minister is one of nationality which Portugal has not withdrawn since the days of its colonial rule, ending in 1975.
In Jong’s case, the Court held that any Portuguese nationality to be relied upon to deflect Australia’s obligations needed to be ‘effective’. To find that nationality was effective, a decision maker must consider a range of practical matters, such as whether or not an applicant could travel to another country of apparent nationality, and whether they had the relevant documents with which to satisfy the authorities that they were in fact a national. In other words, beyond formal legal nationality, it had to be accessible in a real sense.
In Lay’s case, the concept of effective nationality was taken even further by Finkelstein J, who held that a court or tribunal would have to be satisfied that the fundamental rights of a refugee would be protected there:
In my view, comfortably with the views expressed in the United Nations Handbook and comfortably with the purpose and object of the Refugees Convention, ‘effective nationality’ is a nationality that provides all of the protection and rights to which a national is entitled to receive under customary or conventional international law. [at 692.6]
This reasoning is consistent with the view that our obligations to refugees go beyond the basic question of non-refoulement, to include consideration of other basic human rights. Finkelstein J notes, for example, the protection under the Refugees Convention of freedom of religion, freedom of association and free access to local courts for refugees. This approach properly considers Australia’s obligations to refugees in the context of the Convention as a whole, and consistently with its humanitarian purpose.
In Lay’s case, the Court went on to find that the applicant did not have the effective nationality of Portugal, and was consequently entitled to have his claims for asylum determined in Australia. Important to that decision was a public statement made by the Portuguese government to the effect that those seeking to acquire Portuguese nationality needed to make a voluntary statement that they wished to become Portuguese.
This position was consistent with Portugal’s professed support for East Timor’s right of self-determination, and its reluctance to have East Timorese forced to take up Portuguese nationality. Therefore, the Court found that it could not be satisfied that East Timorese people required to go to Portugal against their will would be granted Portuguese nationality, and could therefore face return to what was, at that time, Indonesia.
The caution with which the courts in these cases approached this issue (mindful, it seems, of the person on the other end of the ‘issue’) was, however, not to last. The Minister, in the great tradition of modern Australian migration law, has not only taken his bat and ball home, but, to strain the cliché, kidnapped the umpire.
Following the introduction of the BPLAA, s.36 of the Migration Act now provides, relevantly, as follows:
(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non-citizen has a well-founded fear that:
(a) a country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first-mentioned country.
(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
It is difficult to see how these provisions will be workable for asylum seekers. What must a refugee applicant do to satisfy the obligation to take all possible steps to avail themselves of any right to enter and reside, even temporarily, in any other country that will not either persecute, or refoule, that person? Must every country in the world be considered to see whether or not they might offer even a transit visa, which might then allow an application for a refugee visa to be lodged in that other country? Will the asylum seeker need to show that they have approached each and every country apart from Australia?
The real impact of the section may depend largely on the meaning given to the word ‘reside’. In one case decided on the issue, the Refugee Review Tribunal has found that a Colombian man, entitled to enter Argentina for a 90-day period without a visa, had the right to ‘reside there’ for the purposes of the section; a right to enter as a visitor was enough for the purposes of s.36(3). It was found that he could make an application for asylum in Argentina, and was therefore owed no protection obligation by Australia.
The provisions confirm that no connection to a third country is required for Australia to be able to defer its protection obligations. Furthermore, the asylum seeker must take all possible steps to avail themselves of a right to go elsewhere — it would seem it is not good enough that they have taken all reasonable steps.
Considerations of the effectiveness of protection offered by a third country would appear to be secondary to whether or not the asylum seeker has taken ‘all possible steps’ to avail themselves of any rights they may have. The provisions firstly blur the distinction between a right to enter and reside in a country, and an ability to apply for such a right, which may not be granted. In addition, in cases of possible dual nationality, the provisions specifically remove any requirement to consider whether or not nationality is effective. The only consideration is the law of the foreign country (s.36(6)), and whether or not they would subject a refugee to refoulement (s.36(5)). Consideration of the principles of international law in relation to nationality, which were previously considered relevant in determining Australia’s obligations under the convention, and have been argued in cases involving East Timorese applicants, are therefore also excluded.
However, the real sting of the changes introduced by the BPLAA comes in the introduction of s.91P, whereby people with dual nationality or access to protection from a designated third country (such designation to be made by the Minister) are not even able to make a valid application for a visa. The breadth of this is quite extraordinary — there is no requirement that there be a consideration of whether or not the person may be subject to refoulement by that third country, or indeed whether or not the person may be subject to persecution in that third country.
Some scope exists for protecting refugees from refoulement where they are to be returned to designated third countries — to ‘designate’ a country, the Minister must first receive in writing from the United Nations High Commission for Refugees (UNHCR) a declaration that a specified country provides certain measures to guarantee ‘effective protection’ (s.91N(3)). However, this proviso does not apply to cases of potential dual nationality. There is no requirement that such a country be ‘designated’. Furthermore, the proviso does not mean that the individual case will be considered to determine whether or not an asylum seeker is in fact protected from refoulement — it is a blanket provision.
To take the East Timorese as an example, if they were to arrive in Australia today, they would not even be able to make a valid application, let alone have it considered, despite the fact that their Portuguese nationality has been a subject of great dispute. They would simply be removed from Australia as soon as possible (s.198(9)).
The only exception to this is if the Minister believes it is in the public interest to determine that the provision does not apply to a non-citizen. The legislation notes, however, that the Minister ‘does not have a duty to consider whether or not to exercise the power … in respect of a non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances’, and the exercise of this power cannot be subjected to judicial review (s.475(2)(e)).
Large-scale movement of people across borders will always be a challenging issue for countries, and it is inevitable that countries will seek to protect the integrity of their borders and maintain control over the entry of people into their territory. However, there is nothing to suggest that Australia’s current legislative regime for dealing with asylum seekers is other than a unilateral attempt to deflect its responsibility for such people — as opposed to a genuine attempt to identify the appropriate country to deal with an asylum seeker’s claim. They raise the very real possibility of ‘shuttlecocking’ or ‘refugees in orbit’, whereby asylum seekers are sent from country to country, each denying responsibility.
There are valid reasons why an asylum seeker may travel to one country rather than another, other than as a ‘forum shopper’. As the Jesuit Refugee Service has noted in its submissions to the United Nations High Commissioner for Refugees (UNHCR) regarding this legislation, the presence of family members, or the existence of an established ethnic community which can provide vital support for a refugee are obvious motivations. In turn, a supportive community for refugees will allow for the ongoing contribution of refugees to Australian society.
Such matters are recognised in the conclusions of the UNHCR Executive Committee, which has stated that the intentions of an asylum seeker as regards the country in which they wish to request asylum should ‘as far as possible be taken into account’. The conclusion further notes that an asylum seeker should not be refused solely on the ground that it could be sought from another State — unless the person has a ‘connection or close links with another State’ and it ‘appears fair and reasonable’ for them to be required to seek protection elsewhere. Australia’s laws are fundamentally incompatible with these conclusions.
Even if it is accepted that non-refoulement is the ‘engine room’ of the Convention, the current provisions fail this basic obligation. Because the provisions make invalid applications by people with dual nationality, or access to protection in designated countries, there is no requirement to consider each case on its merits to see whether or not a person is actually at risk of refoulement. The Jesuit Refugee Service has described this as a ‘white list’ approach ‘where particular countries are declared safe in a generic fashion, regardless of whether a particular asylum-seeker might not be safe in that country’.
There is no hint of procedural fairness in the new provisions. As noted above, persons found to have either dual nationality or the right to enter a designated country are unable to even have their application considered. For those asylum seekers, the compliance officers of the Department of Immigration and Multicultural Affairs are judge and jury, and once an adverse decision is made, the refugee claimant will be subject to deportation. They will not be provided with legal advice unless they request it, but even then, the Act is worded such that it might be denied on the basis that such legal advice relates not to their detention, but only their deportation (ss.193(2), 256).
In addition, earlier amendments to the Migration Act have made it plain that there is no obligation on any officer to provide a person in immigration detention with an application form for a visa, unless the detainee specifically requests one. The same amendments also prevent the Human Rights and Equal Opportunities Commission and the Ombudsman from accessing detainees unless detainees have lodged a complaint with those bodies in writing (for which it would seem they have no right to receive assistance or advice) (ss.193(2), 193(3), 256).
For those lucky enough to be allowed to have their claims considered, they do so with limited access to legal services, and with severely curtailed rights of appeal. For example, it is not a permissible ground of appeal that a decision ‘involved an exercise of power so unreasonable that no reasonable person could have so exercised the power’. Nor is it possible to appeal a decision on the basis that a decision breached the rules of natural justice, or that it involved the exercise of a discretionary power in bad faith (s.476).
Finally, as if to make it perfectly clear that any protection is offered begrudgingly, people who have entered Australia unlawfully are only entitled to be granted a ‘Temporary Protection Visa’. This visa allows them to stay in Australia for three years, at which time they will have to apply for a permanent visa, and potentially start all over again. For asylum seekers who are, by definition, fleeing persecution (and often torture and trauma), it is more uncertainty and insecurity, and another hurdle to building a safe future.
We have to be seriously concerned about our treatment of asylum seekers when our own Human Rights Commission is effectively denied access to detainees. Only a few months ago, detainees in a number of detention centres were so aggrieved with the conditions of their detention that they broke down the fences in protest. The answer was not to examine the reasons for this. It was to build bigger fences, and commence criminal prosecutions against those ‘responsible’. On 28 August 2000, protests in the Woomera detention centre led to buildings being burnt down and riot police had to be called with tear gas and a water cannon.
Is the ‘problem’ so serious that we can justify treating people arriving here unlawfully worse than criminals (who can at least apply for bail)? Between 28 November 1989 and the time of writing, a total of 8289 people arrived in Australia unlawfully by boat. Nobody is suggesting we throw open our borders, but 8289 people over 11 years is hardly cause for panic.
It is worth remembering that the largest number of ‘unlawful non-citizens’ in Australia at the present time are from the same place as those first people to arrive in boats on our shores without visas authorising their entry into Australia, and to whom the words ‘warra warra’ were first delivered. They are from the United Kingdom — but presumably while we can still beat the English at cricket, we won’t be getting too concerned.
The views expressed herein are not those of the Commission. Thanks to Karyn Anderson and Jennifer Devlin for their very helpful comments on drafts of this article. I also acknowledge and thank Professor Guy Goodwin-Gill for his thoughts on the issues dealt with in this article.
[*] Jonathon Hunyor is a solicitor at the Northern Territory Legal Aid Commission in Darwin.
 See Hughes, Robert, The Fatal Shore, Vintage, 1998, p.84.
 Commenced 16 December 1999. The BPLAA also made amendments to the Fisheries Management Act 1991, and the Customs Act 1901.
 See House Hansard: Member for Sturt, Chris Pyne, 21 October 1999, BPLA Bill 1999, Second Reading Speech; Minister for Immigration and Multicultural Affairs, Philip Ruddock, 22 September 1999, BPLA Bill 1999, Second Reading Speech.
 Migration Legislation Amendment Acts (No 1) and (No 2) 1999.
 See Articles 1A(2), 1(C), 1(D) and 1(E) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, as amended by the Protocol relating to the Status of Refugees, New York, 31 January 1967, hereafter ‘the Refugees Convention’. See also Hathaway, James, The Law of Refugee Status, Butterworths, Canada, 1991, pp.57, 205.
 A refugee is 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’; Article 1A, Refugees Convention.
 Section 36(2) Migration Act 1958. Further references to sections are to the Migration Act 1958, unless otherwise indicated.
 See Hathaway, above ref 6, p.47, Goodwin-Gill, Guy, The Refugee in International Law, Clarendon Press, 1998, pp.333-44.
 The Refugee Review Tribunal has referred a case to the Administrative Appeals Tribunal (AAT) by way of test case. The decision of the AAT is, at the time of writing, reserved after a hearing in Darwin. The author is the solicitor in that case. It is estimated that there are 1600 outstanding applications for protection visas involving people from East Timor, some of which are over 10 years old. The Minister for Immigration and Multicultural Affairs has submitted that the applicant should be returned to East Timor, or alternatively, be sent to Portugal.
 Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685.
 Article 33 of the Convention provides that ‘No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.
 See von Doussa J at 693.30 and 702.20.
 Above ref 6.
 Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619.
 Minister for Immigration and Multicultural Affairs v Gnanapiragasam (25 September 1998)  FCA 1213.
 Minister for Immigration and Multicultural Affairs v Kabail (31 March 1999)  FCA 344.
 Kabail, above, at 506.
 Minister for Immigration and Multicultural Affairs v Al-Sallal  FCA 1332; (1999) 167 ALR 175.
 (1999) 167 ALR at 184-5 , citing with approval the comments of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs  FCA 443 at .
 (1999) 167 ALR at 185 .
 Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration and Multicultural Affairs,  HCA 19; (2000) 170 ALR 553, at 564.
 Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695.
 Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681.
 The approach is also consistent with cases dealing with Article 1E of the Convention; see for example Barzideh v Minister for Immigration and Ethnic Affairs (1996) 139 ALR 710. For a competing view, see Piotrowicz, Ryszard, ‘Kon Tji Lay v Minister for Immigration & Ethnic Affairs: The Function and Meaning of Effective Nationality in the Assessment of Applications for Asylum’, International Journal of Refugee Law, 1999, Vol 11, p.544.
 See for example McDonald, Colin, ‘The coming of the Boat People to Australia, Brickbats and the non material rewards of Pro Bono legal work’, paper delivered to the Commonwealth Attorney General’s Pro Bono Law Conference, Canberra, 5 August 2000.
 RRT reference N00/31751, 30 June 2000.
 See Jong, above, and Lay, above, and also the acknowledgement of the relevance of the principles of international law in Thiyagarajah, above at 693.34, 702.20.
 Acting President of the Refuge Review Tribunal, Dr Peter Nygh notes: ‘In a world were empires have dissolved, countries have been partitioned and which has seen massive movements of population, dual nationality is very common. However, many persons, including many Australians, may not be aware that they possess more than one nationality’; Nygh, Peter, Role of the Refugee Tribunal and Recent Developments in Refugee Law, paper delivered to the Migration Law Conference, Law Society of South Australia, 16-18 June 2000.
 Hathaway considers similar developments in other states, and criticises this approach as being ‘inconsistent with the spirit of the Convention’. He notes that they reflect a weakening commitment to the right of the refugee to decide the most effective means of securing their safety, and infringe the principle of burden sharing; above, ref 6, p.47.
 Submission to the office of the United Nations High Commission for Refugees, ‘Regarding the adoption of ‘safe third country’ legislation in Australia, by the Jesuit Refugee Service, prepared by Penelope Mathew, p.6.
 Report of the 31st Session, 1980, UN doc. A/AC.06/588, para.48(2), at para (h)(iii).
 Report of the 31st Session, above, at para (h)(iv).
 See further the submissions to the UNHCR by the Jesuit Refugee Service, above, ref 30, pp.5-8.
 Submission to the office of the UNHCR, above, ref 30, p.8.
 See Migration Regulations Schedule 2, reg 785. A permanent visa can be granted at an earlier stage at the discretion of the Minister; see Schedule 2, reg 866.228(b).
 Such treatment may also breach our obligation under Article 7 of the International Covenant on Civil and Political Rights to not subject persons to ‘cruel, inhuman or degrading treatment’; see Taylor, Savitri, ‘Understanding the Changes to Australia’s Off-shore Humanitarian Resettlement Program’, (2000) April/May Migration Action 4 at 12.
 For updated figures, see < <http://www.immi.gov.au/facts/81boats.htm> >.