Alternative Law Journal
HOSSEIN ESMAEILI and SUZANNE CARLTON[*]
In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (‘QAAH’), the High Court attempted to resolve confusion over the application of art 1C(5) (‘the cessation clause’) of the Convention Relating to the Status of Refugees (‘the Convention’) to Australia’s unique scheme of temporary protection visas (‘TPVs’). The High Court held that the criteria for loss of refugee status, the cessation clause, had little or no role in the government’s decision to grant a permanent protection visa (‘PPV’) to a TPV holder.
The consequence of this decision is that as Australia’s protection of the TPV holder under his or her visa expires, so does Australia’s recognition of the applicant as a refugee. The TPV holder must begin anew establishing refugee claims worthy of Australia’s protection. According to the Court’s ruling, this process continues until such time as the government either grants a PPV, or some other visa, or has the applicant removed to their country of origin. While the decision resolves the legal confusion, it creates uncertainty for Afghan and Iraqi temporary refugees in Australia.
In this article, we will briefly review the background leading up to the High Court’s decision, and analyse the majority decision and the dissenting opinion. We will then discuss the respective Afghan and Iraqi country situations and the likely effect of the decision on Iraqi and Afghan TPV holders. We conclude that the volatile situation in both countries does not support the return of TPV holders.
The government introduced the TPV category in 1999 in response to unauthorised boat arrivals. In introducing the TPV, the then Minister for Immigration, Philip Ruddock, said that ‘illegal’ entry undermined the Australian government’s policy in processing asylum seeker applications.Although the TPV has been the subject of criticism, there is no requirement for state parties to give permanent protection to asylum seekers under the Convention. As noted by the High Court in QAAH, ‘the notion that once a person is a refugee they are always a refugee is entirely fallacious’.
Australia’s use of temporary refugee visas is unique because it is the only country that grants temporary status to refugees whose individual protection claims under the Convention have been thoroughly assessed. In other countries, a form of temporary protection is used in cases of ‘mass influx’ — where a large group of asylum seekers are fleeing an emergency situation that causes them to be displaced and that group’s number threatens to overwhelm the receiving state’s administrative capacity. A temporary visa is then granted to the entire group, without individual refugee assessment.
Article 1A(2) of the Convention defines a refugee. This provision has been incorporated into Australian law by the enactment of s 36(2) of the Migration Act 1958 (Cth) (‘Migration Act’). However, not all provisions of the Convention are incorporated into Australian domestic law.Article 1C sets out the bases on which a refugee may cease to require a state’s protection — the so-called ‘cessation clause’. One of the grounds of cessation, art 1C(5), applies where the circumstances in connection with which the refugee has been so recognised have ceased to exist. In countries other than Australia, the cessation clause has been interpreted in relation to the ‘mass influx’ situation described above, so that its application to Australia’s unique TPV scheme is significant.
QAAH was a Hazara Shia applicant from Afghanistan. On 28 March 2000, QAAH was granted a three-year TPV. QAAH subsequently applied for a PPV. In March 2003 the government granted him a second three-year TPV, rather than a PPV. A few months later, the government refused his PPV.
QAAH then applied to the Refugee Review Tribunal (RRT) for review of that decision. The RRT upheld the Department of Immigration’s decision. The review member found that the Convention’s cessation clause applied and found QAAH no longer had a well-founded fear of persecution at that time.
QAAH then appealed the matter to the Federal Court. Justice Dowsett heard the case, sitting as a single judge, and he affirmed the RRT’s findings. Justice Dowsett held that the cessation clause was not relevant to the government’s decision to grant a further protection visa to QAAH. Justice Dowsett reasoned that QAAH had made a new visa application and therefore was only entitled to a PPV if, at the time of the RRT’s decision, QAAH held a well-founded fear of persecution for a Convention reason.
QAAH then appealed to the Full Court of the Federal Court. In a two-to-one decision, the Full Court reversed Dowsett J’s findings. The Full Court agreed with Dowsett J that the RRT, as an administrative tribunal, does not require either party to bear the onus of proving the fact or effect of changed circumstances in the applicant’s country of origin. However, the Full Court also held that each party bore a particular onus at particular points in the protection visa process. First, QAAH had to prove his claims to refugee status in his initial application for protection, according to the definition of art 1A(2) of the Convention. Secondly, the government had to prove that changes in QAAH’s home country meant that QAAH was no longer entitled to Australia’s protection, in accordance with art 1C(5) of the Convention.
Less than a year later, the Full Court of the Federal Court heard the case of NBGM v MIMIA (‘NBGM’) which raised almost identical issues. NBGM was also a Hazara Shia Afghan. The majority in NBGM reasoned that a previous decision-maker’s finding that ‘the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what [the Migration Act] requires.’
When the Minister appealed the QAAH decision to the High Court, there was no clear agreement amongst the Federal Court justices about the application of the cessation clause and what affect, if any, it had on Australia’s TPV scheme. The High Court agreed with the Minister that it should hear the case and attempt to resolve the issue. When the High Court granted special leave to hear the appeal, it also joined the recently filed NBGM appeal because of the similarity of issues before the court.
A majority of the High Court, with Kirby J dissenting, found that in both NBGM and QAAH the two Afghan applicants were required to prove that they were still entitled to protection when their TPVs expired. Taking a strict legalistic approach, the High Court held that when any visa expires, including a TPV, the holder of the visa must make a fresh application to stay in Australia. In so doing, an applicant seeking a further protection visa must convince the Minister that he or she is entitled to Australia’s protection at the time of application, pursuant to the test set out in art 1A(2) of the Convention and in s 36(2) of the Migration Act.
After citing relevant provisions of the Convention and the Migration Act, the Court considered the construction of s 36 of the Migration Act, which incorporates the Convention’s definition of a refugee as set out in art 1A. The majority took the view that s 36 was not concerned with permanent or temporary residents in Australia or elsewhere; rather, it was concerned with the protection of a person subject to threats of a certain kind in another country. The majority considered that the principal question in the appeal was whether an entrant to Australia, who was previously granted a TPV, is, upon the TPV’s expiration, entitled to assert continued protection under Australian law, even in the face of benign changes in his or her country of origin. The majority reasoned that:
A visa subsists for only the period of it, or until an event, if any, specified in it occurs: ss 28, 29(3), 67, 68(3) and 116. When the visa expires, the holder of it must make a fresh application for another visa, in this case, another protection visa, because otherwise that person would have no entitlement to remain in Australia: and a, or the, relevant criterion for the grant of a protection visa at that time is that the non-citizen, the applicant, is a person to whom Australia has (not, it may be observed, ‘in the past had, or owed’) protection obligations under the convention: s 36(2) and (4).
While agreeing with the Federal Court justices that in an administrative tribunal, like the RRT, no party carries a ‘burden of proof’, the majority’s position means that the onus is on the applicant because he or she must make a new application for protection when his or her TPV expires. The High Court found that the language of the cessation clause was unambiguous, providing that the status of a person recognized as a refugee may change if the circumstances in the person’s country of origin have changed. The High Court next looked at the sort of changes that may be required for the cessation clause to be engaged and disagreed with the stance of the Full Court of the Federal Court in QAAH that the changes must be ‘substantial, effective and durable’.
The practical effect of the High Court’s decision is that no consideration of the cessation clause is necessary in determining a further protection visa application and the refugee bears the burden of proving that conditions in his or her country of origin give rise to continued protection obligations. The decision establishes a clear test in Australian law. However, in practice and as a matter of policy, the decision creates uncertainty for several hundred Afghan and Iraqi TPV holders.
Justice Kirby delivered a dissenting judgment that examined the provisions of the Migration Act and the Convention in great detail. In relation to the application of s 36(2) of the Migration Act and art 1A(2) of the Convention, Kirby J drew a distinction between recognition of a person as a refugee under the Convention, and the granting of protection under s 36(2) of the Migration Act. Justice Kirby reasoned that recognition, as envisaged by the Convention, may only expire in accordance with one of the cessation grounds set out in art 1C of the Convention, including a change of circumstances in the refugee’s country of origin. However, he distinguished recognition as a refugee from the mere lapse of protection (as found upon the expiration of a TPV).
Justice Kirby held that TPV holders, upon expiration of their visas, cease to have protection under Australian law, but continue to be recognized as refugees under the Convention. In other words, they are refugees under international law, but have no protection under Australian law until a new visa is issued for them. Had the majority accepted this position, TPV holders would have been given a PPV unless the Minister or the RRT could prove that a change of circumstances in the refugee’s country of origin engaged the cessation clause.
Justice Kirby also analysed the UNHCR standard relating to the extent of the ‘change in circumstances’ that had to occur in a refugee’s home country to engage the cessation clause. The majority did not consider this standard in any detail, as they did not consider it to be relevant under Australian law.
In relation to the issue of onus of proof, Kirby J concluded that the contender of the change of circumstances, in this case the Minister, has a legal obligation to prove the changes proffered. This is consistent with standard legal principles relating to the burden of proof. Justice Kirby affirmed the majority’s finding in the Full Court of the Federal Court that any change in the refugee’s country of origin must be a fundamental, stable and durable change.
As Kirby J observed in his dissenting judgment, the majority’s decision has the potential to influence the development of international refugee law, as well as the practice of States and decisions of other national courts. Certainly, a decision of Australia’s highest court about a clause of the Convention that has rarely been analysed by other countries’ courts will influence the way that other national courts interpret the Convention. It may also influence the way in which other governments approach their obligations under the Convention. Finally, decisions of national courts are obvious examples of state practice, which is a source of international customary law.
Justice Kirby called the majority’s failure to distinguish the functions of recognition of refugee status and protection a ‘serious error of analysis’. With all due respect to the High Court majority, Kirby J’s interpretation may be correct. The majority neglected the difference between the enforcement of international law in Australia (protection) and the basic provisions of international law in relation to refugees (recognition).
In recent years, Kirby J has been the lone voice respecting international law and reminding the judiciary of Australia’s international obligations, largely in reference to human rights, through both his judgments and public lectures. Almost always in dissent, he has repeatedly noted the unwillingness of the majority to consider domestic legislation in light of international law. His dissent in this case is consistent with that history.
In 1998 Hilary Charlesworth suggested that the High Court was ‘very cautious in its embrace of international law; it has kept its gloves and hat on at all times’. Arguably, with this decision, the High Court has also kept on its overcoat and slammed the door on international law. The majority did not even consider the UNHCR Guidelines or UNHCR Handbook, despite the UNHCR being the responsible international body for the Convention. In other refugee cases, the High Court has had regard to both the UNHCR Guidelines and Handbook. Following the decision’s publication, the UNHCR commented that the QAAH decision failed to ‘reflect the spirit of the legal framework for refugee protection’ envisaged by the Convention.
The overwhelming majority of people affected by the High Court ruling are Afghan and Iraqi temporary protection visa holders. Between 1999 and 2001, the two largest groups of unauthorised boat arrivals came to Australia from Afghanistan and Iraq.
The Department of Immigration froze all processing of further protection visas by Afghan refugees when the Taliban was overthrown in late 2001 in an attempt to determine if country changes in Afghanistan would merit a finding that the Afghan refugees were no longer entitled to protection. The freeze was lifted about 14 months later, following negotiations with the federal government’s Immigration Detention Advisory Group.
Iraqi refugees faced a similar change in policy. The Department froze the processing of Iraqi further protection visas in 2003, ostensibly because it was unable to obtain accurate information about country conditions. The freeze affecting Iraqi applications was lifted on 10 April 2004.
As a result of the High Court’s decision in QAAH, refugees applying for permanent protection must now prove, on an individual basis, that they would continue to be subject to persecution if returned to their countries of origin, whether that is Afghanistan or Iraq. This legal requirement poses a number of difficulties for refugees. In order to prove their cases, refugees are being asked to prove the status of regional and government security in their home countries; the relative strengths of ethnic, religious and political groups in their home countries; and the stability, or otherwise, of government structures in their home countries. While this information is relatively accessible to government, international institutions (like the United Nations), NGOs, academic centres, and experts, an individual refugee is unlikely to have such access.
An added difficulty is that refugees are being asked to prove that they would face individual persecution upon their return to their home countries. This is a difficult standard to meet when, as is often the case, refugees have been out of their home countries for several years and they have lost contact with friends and families in those countries. Often, they suffer memory difficulties in recalling the specifics of their lives before coming to Australia and, with the passage of time, objective evidence becomes increasingly difficult to obtain. These issues are common to all refugees in proving further protection claims. But for Afghans and Iraqis, the situation is worse because of the highly unstable security situations in their countries of origin.
The history of Afghanistan in the last 30 years is marked by its lack of stability. Afghan society has experienced disturbances from a number of factors, including the former Soviet Union’s occupation beginning in 1978; the intervention of the United States beginning in 2001; continued interference by Pakistani intelligence services and government; decades of civil war; the rise and fall of the Taliban; the formation of Al-Qaeda; and the persecution of people based on race and religion. Afghanistan has not been stable for a single year since Soviet tanks entered Kabul in 1978. The Afghan people, for nearly three decades, have experienced significant discrimination, violence, lawlessness, murder, rape, imprisonment, and other forms of persecution. There are ameliorative changes in Afghanistan, including the removal of the Taliban from power, the expulsion of Al-Qaeda, the conclusion of a modern and well-balanced constitution, and the holding of fair and free elections. Yet, according to renowned international experts, Afghanistan stills lacks a ‘framework of developed and consolidated institutions which provide a reasonable assurance that ostensibly serene areas will not suddenly lapse into disarray.’
The Taliban’s governance, which never extended to the whole of Afghanistan, may have been overthrown, but a culture of violence, discrimination, and persecution of minorities continues. According to Professor Amin Saikal of the Australian National University, while the age of fuelling long periods of ideological extremism in Afghanistan may now have passed, in reality
the Karzai government has little writ outside Kabul, its authority is limited by various power-holders, ranging from local charismatic and religious leaders to armed commanders and straight-out warlords in different parts of the country.
Further, the increasing power of the opium trade will likely continue to have a destabilising effect on the country’s efforts towards establishing effective legal, political and economic institutions.
The ameliorative changes in Afghanistan since 2001 do not make Afghan society safe for ordinary, vulnerable Hazara people who have been out of Afghanistan for many years, and who, under the Taliban and local authorities, were subjected to systematic persecution because of their religion and race. Hazara Afghans comprise the majority of Afghan refugees arriving in recent years. Many Taliban militia and local authorities are still influential and will return to power in certain Taliban stronghold areas, particularly in the south and the east of Afghanistan.
Although as recently as February 2005 the UNHCR was recommending the voluntary repatriation of Afghan refugees from Iran and Pakistan, citing reports of relative security, that assessment can no longer be considered accurate. According to a report by the International Crisis Group released in November 2006, both southern and eastern Afghanistan are the subject of attacks by insurgents and terrorists and these battle zones are steadily approaching Kabul.
Rebuilding Afghanistan, and establishing effective legal, political and economic institutions in which society can function and in which individuals subject to past ethnic and religious discrimination and persecution can feel secure, may take many years.
Iraq suffers from religious (Sunni/Shia) and ethnic (Arab/Kurd/Turkman) divides. The situation in Iraq is both similar and different to that in Afghanistan. Like Afghanistan, Iraq is a major source country for TPV holders, comprising 48 per cent of TPV recipients since 1999. Both countries underwent long periods of instability and were the subject of United Nations economic sanctions prior to intervention by the United States. In both countries, foreign forces are engaged in a wide range of activities, including efforts to restore democracy and human rights.
However, there are significant differences between Iraq and Afghanistan that may affect a refugee claim in Australia. Most of central Iraq, and some other areas that have mixed ethnic populations are unsafe, particularly for Shia Muslims who comprise the majority of Iraqi TPV holders in Australia. Southern Iraq, including Basra, may be safe, particularly for Shias. However, given the situation in Baghdad and the potential for the withdrawal of forces led by the United States in early 2008, it is unlikely that Iraq can be considered safe at any time in the foreseeable future.
Overall, the situation in Iraq is worse than that in Afghanistan in terms of deep ethnic, religious and tribal conflicts. Iraq is divided along Shia and Sunni Muslim lines and the growth of both Shia militias and Sunni insurgencies outside of any legal framework has challenged the authority of the Iraqi government. Indeed, in the midst of deadly ethnic and religious conflict, no one may be less secure than those individuals who are returned to Iraq after abandoning their tribal and traditional connections and seeking refugee status in the West.
The situation in Iraq has changed — a hated dictator has been removed; the Baath party is banned from holding public office; and progress has been made in terms of the construction and rebuilding of institutions. But for Iraqi TPV holders in Australia, things have actually worsened. Former Baath party members are still politically active and organized. They are now found in many parts of the country; their influence is not limited by government structures or geographic zones. Instead of operating through recognised government structures, former Baath party members now operate as insurgents in a lawless environment, relatively unchecked by the central government. It is likely that the withdrawal of forces led by the United States will plunge Iraq into civil war.
Unlike Afghanistan, where there is some talk of limited return of Afghan refugees from Iran and Pakistan, the UNHCR, as recently as January 2007, urged Western nations to open their doors to Iraqi asylum seekers.
The QAAH decision follows a recent line of High Court cases addressing refugee law issues. This line of cases has arguably resulted in broadening the scope of the Executive’s powers to deal with asylum seekers. The practical effect of removing the onus of proof from the Minister is that the Executive is now given a broad basis on which to expel a TPV holder when his or her TPV expires. This line of decisions has been criticised, including in a number of articles in this journal, for its adverse effect, both internationally and in Australia, on the basic human rights of asylum seekers.
The government’s focus on the imperatives of security border protection measures and populist policies has eclipsed the humanitarian goals of the refugee protection regime. Unfortunately, by following a strict legalistic interpretation of law, failing to embrace the relevance of international law in relation to refugee law in Australia, and arguably valuing process more highly than people, the High Court is contributing to the government’s approach to refugees.
While the QAAH decision establishes the clear legal test that must be met by TPV holders, the facts clearly establish that Afghanistan and Iraq continue to be dangerous countries for returned TPV holders. It is incumbent on the government to develop policies that have regard both to the opinions of experts in assessing the security situation in those countries and to the unique difficulties citizens of these countries face in having to prove up further protection visa claims.
[*] HOSSEIN ESMAEILI teaches law at Flinders University.
SUZANNE CARLTON is a solicitor and the
Manager of Migration Services at the Australian Refugee Association.
© Hossein Esmaeili and Suzanne Carlton
  HCA 53; (2006) 231 ALR 340.
 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, (entered into force 22 April 1954).
 Migration Regulations 1994 (Cth), Schedule 2, 785 (Visa Class XA, subclass 785).
 Migration Regulations 1994 (Cth), Schedule 2, 866 (Visa Class XA, subclass 866).
 The application of art 1C(5) of the Convention and the Australian decisions relating to that article in the Federal Court have been analysed in this journal and elsewhere: see Emily Hay and Susan Kneebone, ‘Refugee Status in Australia and the Cessation Provisions: QAAH of 2004 v MIMIA’, (2006) 31(3) Alternative Law Journal 147; Maria O’Sullivan, ‘Before the High Court: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH: Cessation of Refugee Status’  SydLawRw 17; (2006) 28 Sydney Law Review 359.
 QAAH  HCA 53; (2006) 231 ALR 340, 350.
 Philip Ruddock, ‘Refugee Claims and Australian Migration Law: A Ministerial Perspective’  UNSWLawJl 51; (2000) 23 University of New South Wales Law Journal 1, 3; Amanda Vanstone, then Minister for Immigration and Multicultural Affairs, commented that TPVs ‘are a key plank of our border protection measures’: see Tim Dick and Ben Cubby, ‘Afghans sent packing after court rules on temporary visas’, Sydney Morning Herald (Sydney), 16 November 2006, 7.
 See Hossein Esmaeili and Belinda Wells, ‘The Temporary Refugees: Australia’s Legal Response to the Arrival of Iraqi and Afghan Boat People’ (2000) 23 University of New South Wales Law Journal (2000) 224, and Alice Edwards, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15 International Journal of Refugee Law 192.
 See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 392, 432; MIMA v Thiyagarajah (1997) 80 FCR 543, 572; and J Hathaway, Law of Refugee Status (1991) 189.
  HCA 53; (2006) 231 ALR 340, 353.
 Roz Germov and Francesco Motta, Refugee Law in Australia (2003) 403.
 O’Sullivan, above n 5, 361; see also Human Rights Watch, ‘Commentary on Australia’s Temporary Protection Visas for Refugees’ (May 2003) <http://www.hrw.org/backgrounder/refugees/australia051303.pdf> at 15 May 2007.
 Human Rights Watch, above n 12.
 MIMA v Khawar (2002) 210 CLR 1, 16 (McHugh and Gummow JJ).
 RRT Decision (unpublished), as cited in QAAH v MIMIA  FCA 1448 (Unreported, Dowsett J, 11 November 2004) –.
 Ibid .
 QAAH v MIMIA  FCAFC 136; (2005) 145 FCR 363.
 Ibid 383.
 NBGM v MIMIA  FCAFC 60; (2006) 150 FCR 522 (‘NBGM’).
 Ibid 530.
 MIMIA v QAAH  HCATrans 1033 (16 December 2005).
 The majority comprised Gummow ACJ, and Callinan, Heydon and Crennan JJ.
 QAAH  HCA 53; (2006) 231 ALR 340, 350.
 Ibid 351.
 Ibid 350.
 The standard urged by the United Nations High Commission for Refugees (UNHCR) in its Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (2003) <http://www.unhcr.org/publ/PUBL/3e637a202.pdf> at 15 May 2007.
 QAAH  HCA 53; (2006) 231 ALR 340, 368.
 Ibid 376–377.
 Ibid 378.
 Ibid 354.
 Ibid 359.
 See, eg, Justice Michael Kirby, ‘Law, like the Olympics, is now International – But will Australia win Gold?’ (2000) 7 James Cook University Law Review 4.
 In Al-Kateb v Godwin  HCA 37; (2004) 219 CLR 562, McHugh J dismissed the idea of interpretation of domestic law by reference to international law as ‘based on a fiction’: at 624.
 Hilary Charlesworth, ‘Dangerous Liaisons: Globalisation and Australian Public Law’  AdelLawRw 6; (1998) 20 Adelaide Law Review 57, 66.
 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol relating to the Status of Refugees (1979, re-edited 1992).
 See, eg, Chan v MIMIA (1989) 169 CLR 379, 392; Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369, 399.
 UNHCR, ‘UNHCR concerned about confirmation of TPV system by High Court’ (Press Release, 20 November 2006) <http://www.unhcr.org.au/pdfs/TPVHighCourt.pdf> at 15 May 2007.
 Department of Immigration and Multicultural Affairs, Annual Report 1999–2000 <http://www.immi.gov.au/about/reports/annual/1999-2000/index.htm> at 15 May 2007.
 Evidence to Legal and Constitutional Legislation Committee, Senate, Canberra, 22 February 2002, 468 (Mr Robert Illingworth, Assistant Secretary, Onshore Protection Branch, DIMIA) <http://www.aph.gov.au/hansard/senate/commttee/s5394.pdf> at 15 May 2007.
 ‘A Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner 2001’, Human Rights and Equal Opportunity Commission <http://www.hreoc.gov.au/human_rights/idc/idc2001.html> at 15 May 2007.
 Evidence to Legal and Constitutional Legislation Committee, Senate, Canberra, 17 February 2004, 42 (Mr Peter Hughes, First Assistant Secretary, Refugee, Humanitarian and International Division, DIMIA) <http://www.aph.gov.au/hansard/senate/commttee/S7314.pdf> at 15 May 2007.
 Evidence to Legal and Constitutional Legislation Committee, Senate, Canberra, 27 May 2004, 12 <http://www.aph.gov.au/hansard/senate/commttee/S7629.pdf> at 15 May 2007.
 See Barnett R Rubin, The Fragmentation of Afghanistan: State Formation and Collapse in the International System (1995).
 William Maley, ‘Political Transitions and the Cessation of Refugee Status: Some Lessons from Afghanistan and Iraq’ (2004) 22 Law in Context 156, 172. See also Amin Saikal, Modern Afghanistan: A History of Struggle and Survival (2004).
 Saikal, above n 51, 238.
 International Crisis Group, ‘Countering Afghanistan’s Insurgency: No Quick Fixes’, Asia Report No 123 (2 November 2006).
 Brotherhood of St Laurence, ‘Closing the Gap for TPV Refugees in Victoria: A State-wide Action Plan’ (2005) <http://www.bsl.org.au/pdfs/TPV_action_plan_2005.pdf> at 15 May 2007.
 Bruce Campion-Smith, ‘Government Plans for Iraqi Refugees: UN agency will ask western countries to open doors to those fleeing violence’, The Toronto Star (Toronto), 20 January 2007, 4.
 Al-Kateb v Godwin  HCA 37; (2004) 208 ALR 124; MIMIA v Al Khafaji  HCA 38; (2004) 219 CLR 664; Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369; Behrooz v Secretary of DIMIA  HCA 36; (2004) 219 CLR 486.
 Michael Head, ‘Detention Without Trials — A Threat to Democratic Rights’  UWSLawRw 3; (2005) 9 University of Western Sydney Law Review 33.
 Michael Head, ‘Detention Without Trials — Is There No Limit?’ (2005) 30(2) Alternative Law Journal 63; Alex Reilly, ‘Immigration Detention: Pushing the Boundaries’ (2004) 29(5) Alternative Law Journal 248.