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SAVITRI TAYLOR[*]
[In the aftermath of September 11, Australia has committed itself to active participation in the ‘war on terrorism’. In light of concerns expressed by the Australian government that terrorists might sometimes take the guise of asylum-seekers, this article considers whether Australian procedures for dealing with onshore asylum-seekers have adequate safeguards in place to ensure that persons suspected of being a ‘danger to the security of the country’ are not removed in breach of Australia’s international protection obligations. To the extent that procedural safeguards are found to be inadequate, the article considers how they can be improved without unduly compromising Australia’s legitimate security interests.]
CONTENTS
He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.[1]
Australians have been warned by their government that
[t]he horrific and tragic events of September 11 marked a fundamental shift in the international security environment.
That day showed us that no country is safe from the devastation that can be inflicted by terrorism.[2]
More specifically, we have been warned that there could be, amongst the non-citizens who arrive in Australia without proper authorisation, some persons who are members of terrorist organisations or persons otherwise posing a threat to national security.[3] It is impossible to deny that this may be the case.[4] Similarly, it is impossible to deny that some among the much larger number of relatively unvetted[5] authorised arrivals may have terrorist links or otherwise pose a threat to national security.[6] However, such persons are likely to be very few in number.[7] Moreover, in the interests of maintaining a proper sense of proportion it is worth keeping at the forefront of our minds that there are some persons among the present population of Australian citizens who are just as likely to pose a threat to national security.[8]
The Australian government’s main response to the new security environment was the introduction into Parliament of a package of counter-terrorism Bills which purported to enhance greatly the investigative and other powers of the Australian Security Intelligence Organisation (‘ASIO’) and other relevant Australian government agencies, create new terrorism offences and implement Australia’s obligations under various counter-terrorism treaties. The package as originally introduced into Parliament was trenchantly criticised for failing to safeguard adequately against human rights abuses being committed in the pursuit of national security.[9] As a result, the government was only able to procure the passage of a watered-down version of the original package.[10] Even in diluted form, though, the Security Legislation Amendment (Terrorism) Act 2002 (Cth) enables both citizens and non-citizens to be charged with and convicted of a wide range of new offences. These include engaging in a terrorist act,[11] engaging in acts preparatory to a terrorist act,[12] providing or receiving training for,[13] or possessing things connected with, an actual or potential terrorist act,[14] and being a formal or informal member of, or assisting, a ‘terrorist organisation’.[15]
Citizens who are thought to represent a national security risk, but who have not actually committed one of these new offences or any others, will presumably continue to be monitored by Australian security agencies. However, in the case of non-citizens falling into the same category, the temptation must be greater than ever in the post-September 11 environment simply to get rid of the problem by deporting them from the country. The purpose of this article is to consider whether Australian procedures for dealing with protection visa applicants have satisfactory safeguards in place to ensure that those thought to represent a national security risk are not removed in breach of Australia’s protection obligations under certain human rights treaties to which it is a party. These treaties are the Convention Relating to the Status of Refugees,[16] the Protocol Relating to the Status of Refugees,[17] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[18] and the International Covenant on Civil and Political Rights.[19] To the extent that procedures are found to be unsatisfactory, it is the further purpose of this article to recommend procedural reform that will not unduly compromise Australia’s legitimate security interests.
Asylum-seekers who manage to get themselves to mainland Australia without prior authorisation[20] (probably arriving by air rather than sea)[21] still have to overcome one more hurdle. Each unauthorised arrival undergoes an individual screening interview conducted by a Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) officer. On the basis of a written summary of this interview, a senior DIMIA officer based in Canberra determines whether the person has made claims which, prima facie, may engage Australia’s protection obligations under the Refugees Convention. If the answer is ‘no’, the person is removed from Australia as soon as practicable.[22] If the answer is ‘yes’, the person is supposedly allowed to remain and make a protection visa application.
ASIO, which is responsible for making security assessments of asylum-seekers, appears to become involved in the process from the initial screening interview.[23] According to a member of the Joint Standing Committee on Foreign Affairs, Defence and Trade, the Director-General of ASIO informed that Committee that ‘he was able to develop a security profile such that he would be able to determine in a boatload of refugees those who needed closer investigation and detailed investigation and those who were not a security risk.’[24]
Since the entire screening process is the opposite of transparent, it cannot be ruled out that asylum-seekers in respect of whom there are security concerns will simply be ‘screened out’ and removed without ever being given an opportunity to make a protection visa application.
This article considers only the situation of asylum-seekers in Australia who are permitted to make protection visa applications. As well as unauthorised arrivals who survive the screening process, those who arrive in Australia on valid temporary visas and then invoke Australia’s protection obligations[25] are permitted to make protection visa applications.
The basic criterion for the grant of a protection visa is that the applicant is ‘a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’ or is the spouse or dependant of a protection visa holder.[26] However, in order to be granted a protection visa, an applicant must also undergo medical examinations and satisfy public interest criteria 4001, 4002 and 4003.[27] Further, the Minister must be satisfied that the grant of the visa is in the national interest.[28] The public interest criterion of relevance to this article is public interest criterion 4002, which requires that the applicant ‘is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.’[29]
Protection visas are divided into two subclasses: temporary and permanent. It is a criterion for the grant of a Permanent Protection Visa (‘PPV’) that the applicant entered Australia pursuant to a valid visa or has previously been granted a Temporary Protection Visa (‘TPV’) or Temporary Safe Haven Visa.[30] A successful protection visa applicant who does not meet this criterion can only be granted a TPV of three years’ duration in the first instance. Between the introduction of the TPV in October 1999 and 8 February 2002, 7627 TPVs had been granted to unauthorised arrivals.[31] TPV holders may make further protection visa applications. However, a TPV holder making a protection visa application after 27 September 2001 is only eligible for the grant of a PPV if he or she has not, since leaving his or her home country, ever resided for a continuous period of seven days or more in a country in which he or she could have sought and obtained effective protection.[32] Australia will, therefore, become host to a growing group of individuals forced to reapply for protection visas on a regular basis.
The prohibition on refoulement is the key provision of the Refugees Convention. Article 33(1) provides that no state party
shall expel or return (‘refouler’) a refugee[33] in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened[34] on
account of his race, religion, nationality, membership of a particular social group or political opinion.
The Refugees Convention art 1A(2), as modified by the Refugees Protocol art 1(2), provides that for the purposes of that convention, the term ‘refugee’ applies to any person who,
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.[35]
The Refugees Convention arts 1D, 1E and 1F provide for the exclusion from refugee status of persons who would otherwise fall within the definition in art 1A. The art 1D and 1E exclusions are not of particular relevance to the subject matter of this article. The art 1F exclusion is of potential relevance as it provides:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [or]
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.
This article will consider only the situation of asylum-seekers who would not be excluded from refugee status under art 1F.
The art 33(1) non-refoulement obligation applies regardless of a refugee’s immigration status. According to art 33(2), however, the obligation does not apply in respect of a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.[36]
This article is confined to a consideration of situations in which only the first limb of art 33(2) may be invoked.
The CAT art 3 provides that ‘[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ Refoulement, for the purposes of the CAT art 3, is a concept similar to that contained in the Refugees Convention art 33(1). The Australian government accepts the view of the United Nations Committee against Torture that the CAT does not allow for derogation from art 3 under any circumstances.[38]
Unlike the CAT, the ICCPR does not contain an express non-refoulement obligation. However, the Australian government accepts that art 6 (the right to life) and art 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) of the ICCPR and the death penalty prohibition in the Second Optional Protocol[39] to the ICCPR give rise to an absolute prohibition on refoulement.[40]
The Refugees Convention art 32 sets constraints on the ability of states parties to expel a refugee lawfully in their territory. It provides that:
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
The ICCPR art 13 sets constraints identical to those contained in the Refugees Convention art 32(2) on the ability of states parties to expel an alien lawfully in their territory.[41]
The key word in the Refugees Convention art 32 and the ICCPR art 13 is ‘lawfully’. Goodwin-Gill contends that the benefit of art 32 is not even available to those refugees who have temporarily been given lawful immigration status, but rather is confined to refugees who have been given permanent resident status.[42] It is accepted for the sake of argument that Goodwin-Gill is correct. It is further accepted (without inquiry) that ‘lawfully’ in the ICCPR art 13 may have a similarly restrictive meaning. However, even though the provisions mentioned above are not directly applicable to asylum-seekers and refugees who are not ‘lawfully’ within the territory of a state party, their content is of indirect relevance.
As a general principle, the greater the importance of the substantive rights at stake in particular proceedings, the greater the procedural protection that ought to be provided to the individual affected. The cost of an incorrect decision to an asylum-seeker with an actual entitlement to Australia’s protection under international law is that of being returned to a country in which he or she faces the risk of being killed, tortured or subjected to other serious human rights abuses. In other words, the private interests affected by a protection visa decision are the greatest imaginable. The procedural protection provided to protection visa applicants ought to be commensurately extensive.
Lauterpacht and Bethlehem argue that, since loss of art 33 protection has more devastating potential consequences for a refugee or asylum-seeker than mere expulsion,[43] logic suggests that the application of the Refugees Convention art 33(2) must be subject to at least those procedural safeguards spelled out in art 32(2).[44] What though of the situation of aliens other than ‘refugees’ unlawfully entering or remaining within the territory of a state? Can they claim any procedural rights against a state seeking to exercise its sovereign right of expulsion? According to the United Nations Human Rights Committee, they can at the very least claim that their non-derogable rights as set out in the ICCPR art 4(2) ‘must be secured by procedural guarantees, including, often, judicial guarantees.’[45] It is argued that here, too, logic suggests that the protection obligations implicit in the ICCPR must at least be subject to those procedural safeguards spelled out in the ICCPR art 13.
The Refugees Convention art 32(2) and the ICCPR art 13 both provide that, in the usual case, a person facing expulsion must be allowed to submit evidence to clear him or herself. This carries an implicit requirement that he or she be allowed to know the case for expulsion.[46] Keeping adverse allegations and/or evidence secret from such a person denies them an opportunity to refute the adverse material. The person is, therefore, denied the opportunity to make the best possible case against visa refusal to the decision-maker and/or to demonstrate to a reviewing authority that the refusal decision is based on a shaky foundation of ‘fact’ and/or inference. Moreover, if the providers and users of adverse material know that the material will not be scrutinised by others, they have less incentive to test rigorously that material for veracity themselves.[47] For this reason, too, it is not conducive to the making of correct decisions to keep adverse material secret.
The other main procedural requirement stated in both the Refugees Convention art 32(2) and the ICCPR art 13 is that provision must be made for appeal against an adverse decision. The need for a review mechanism is obvious. Even competent and well-intentioned decision-makers will make errors sometimes. One way of minimising the chance that an error has been made in a given case is to get another decision-maker to look at the same case afresh. If two decision-makers independently come to the same conclusion, confidence in that conclusion is increased. If the second decision-maker disagrees with the first, there is no a priori reason to think that the second decision is the correct one, but confidence in the correctness of the first decision must necessarily be undermined by the fact that a different decision-maker comes to a different decision.
Review also, of course, gives a second chance to claimants who have been rejected at the primary stage for reasons extraneous to the merits of their case. However, such a second chance is only of use if the reviewer is independent of the primary decision-maker and is free also of the biases and/or political pressures that may have affected the primary decision-maker. Present-day concepts of due process require, therefore, that the authority in question be an impartial tribunal independent of the initial decision-maker.[48]
A final ‘due process of law’ requirement, which is so self-evident that it is not usually articulated expressly but which needs articulation in the present context, is that decision-makers must have before them all relevant information. Commonsense suggests that the goal of accuracy in decision-making will be seriously compromised otherwise.
In the course of arguing the case for analogous safeguards, it is impossible to ignore the fact that the provisions in both the Refugees Convention art 32(2) and the ICCPR art 13 are qualified by the statement: ‘except where compelling reasons of national security otherwise require’. The question is when (if ever) will ‘compelling reasons of national security otherwise require’?
For the purposes of this article it will, for the most part, be accepted that the restrictions on procedural rights that will be discussed have been adopted in pursuit of a legitimate national security goal and are actually capable of achieving that goal. That is not, however, the end of the matter. It is generally recognised at both the international and national level that, if a human rights-respecting society governed by the rule of law wishes to continue to be such, its national security measures, including anti-terrorism measures, must conform to the principle of proportionality.[49] In other words, the measure must be the least oppressive means available for promoting the national security goal, and additionally, the public interest gain must outweigh the cost to the affected individual. Although a government necessarily has a margin of appreciation in making this last judgment, that margin is limited. The question and decision we face now is whether, post-September 11, the proportionality requirement will continue to be given real meaning.
Liberal societies and the international human rights regime are based on a ‘normalcy-rule, emergency-exception’ paradigm.[50] In the real world, however, emergencies cannot be predicted nor their nature anticipated in advance, and the line of demarcation between normalcy and emergency is blurred. Many years ago, German political thinker and supporter of the Nazi regime, Carl Schmitt, argued that liberal societies were unable to deal with this reality and put forward his own prescription for doing so. Schmitt’s starting proposition was that guaranteeing security and order within its borders was the raison d’être of the modern state and the foundation requirement for the existence of a legal order.[51] The ‘exception’ was ‘a case of extreme peril, a danger to the existence of the state, or the like’[52] which destroyed the precondition necessary for a valid legal order.[53] The possibility of its occurrence was ever-present. Schmitt derided the ‘tendency of liberal constitutionalism to regulate the exception as precisely as possible’.[54] Schmitt’s thesis was that there had to be a single authority with the unhampered power to decide when a situation constituting the exception existed, who the ‘enemy’ was,[55] what measures were required to counter the danger posed by the enemy, and when the restoration of the ‘normal’ situation of order and security could be considered complete. As Oren Gross has pointed out:
What Schmitt is really doing in Political Theology is not limited to reversing the roles of the ordinary legal order and the normal case, on one hand, and the exception, on the other. In fact, Schmitt’s new position eliminates altogether the notion of the normal and replaces it with the exception. It is not only that the exception confirms the rule and that the rule’s very existence ‘derives only from the exception,’ but rather that the exception gobbles up the normal case and becomes, in and of itself, the ordinary, general rule. In that respect, there is no place to continue talking about rule and exception. The exception becomes everything; the rule is reduced to nothing. The exception is no longer merely normless; it is also exceptionless.[56]
...
The only logical outcome of Schmitt’s collapsing together the power to decide the existence of the exception and the breadth of counteremergency powers to be used in order to bring the exception to a conclusion, and depositing them both in the hands of one person, is that the dictator’s unlimited powers are never turned off.[57]
Now let us flash forward. The Commonwealth Attorney-General, Daryl Williams, attempted to justify the government’s counter-terrorism Bills in their original draconian[58] form in the following terms:
At the beginning of the twenty-first century a war is being waged ― it is a war against terrorism. But this is not a traditional war. It is a war against an enemy that is difficult to define and even harder to identify. Terrorism can take many forms. And it can strike in many different ways. ...
There are some who seem incapable or unwilling to accept the need for or the intent and application of the legislation. They cannot accept that since September 11 our world has changed forever and that the changed security environment has necessitated the type of legislation currently before the Parliament.
It is simply naïve to suggest that what we are proposing is unnecessary or an over-reaction on the basis that there is no known specific threat of terrorism in Australia.[59]
It is suggested that an instructive parallel can be drawn between the above rhetoric and the thinking of Carl Schmitt. Unless we are vigilant we may find ourselves accepting Carl Schmitt’s theory of emergency powers by default.
The best way for the members of a liberal society, living with the post-September 11 blurring of the boundary between normalcy and emergency, to safeguard the rights to which they have become accustomed is by insisting that the principle of proportionality be applied in all areas of national security activity. In the present context, this means insisting on a case-by-case demonstration that the cost of procedural restrictions on the individual asylum-seeker is not disproportionate to the seriousness and likelihood of the danger to Australia of permitting that particular individual in those particular circumstances access to the usual procedural safeguards. If Australians wonder how arbitrary denial of procedural safeguards to a non-citizen, the obvious ‘other’, can be a threat to them, consider this: the ‘Australian community’ is not a natural and immutable group. Our history demonstrates that the outer limits of our sense of community contract in the face of war and other political crises.[60] In the oft-quoted words of
one who warned against undue complacency:
First they came for the Jews and I did not speak out ―
because I was not a Jew.
Then they came for the Communists and I did not speak out ―
because I was not a Communist.
Then they came for the trade unionists and I did not speak out ―
because I was not a trade unionist.
Then they came for me ―
and there was no one left to speak out for me.[61]
Protection visa decisions are made by DIMIA officers (acting as delegates of the Minister for Immigration) in the first instance. Refusal of a protection visa for failure to satisfy the criteria set out in the Migration Regulations 1994 (Cth) constitutes an exercise by the decision-maker of a power conferred by the Migration Act 1958 (Cth) s 65.
In the usual case, a primary stage protection visa refusal is subject to merits review by the Refugee Review Tribunal (‘RRT’). The RRT cannot, however, review a decision to refuse a protection visa relying on the Refugees Convention art 33(2).[62] The Administrative Appeals Tribunal (‘AAT’), constituted by a presidential member sitting alone,[63] has been given jurisdiction to review these decisions.[64] It has not, however, been given jurisdiction to review decisions relying on public interest criterion 4002.[65] Tamberlin J in Kaddari v Minister for Immigration and Multicultural Affairs expressed the view in obiter that the RRT would have jurisdiction to review a decision to refuse a protection visa on public interest criterion 4002 grounds.[66] Any review obtained from the RRT would, however, be empty because the question for the RRT, as for the primary decision-maker, is simply whether an adverse security assessment by ASIO exists in respect of the applicant.
Turning now to judicial review, the Migration Act 1958 (Cth) s 474 provides that, subject to specified exceptions, any decision of an administrative character made under the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth) is a ‘privative clause decision’. Accordingly, a protection visa decision is a privative clause decision. A privative clause decision, according to s 474, is ‘final and conclusive’, cannot be ‘challenged, appealed against, reviewed, quashed or called into question in any court’ and ‘is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account’. Assuming the privitive clause is constitutionally valid and interpreted as similar clauses have been interpreted, what the clause actually does is expand the usual definition of a lawful decision.[67] It has the effect that a decision must be considered lawful, unless it has been made in bad faith, in excess of jurisdiction or in excess of constitutional limits. The Federal Court or Federal Magistrates Court, acting pursuant to the Judiciary Act 1903 (Cth) s 39B, and the High Court, acting pursuant to the Australian Constitution s 75(v), will be able to review a privative clause decision on these grounds but no others.[68] Although the precise width of these grounds is as yet unsettled, it is probably the case that most recipients of ‘privative clause decisions’ do not have access to judicial review in any meaningful sense.[69]
The Migration Act 1958 (Cth) does not give the DIMIA primary stage decision-maker, the RRT or the AAT the power to grant a protection visa to an applicant not meeting the criteria for the grant of a protection visa. However, the Minister for Immigration has been given personal powers to substitute for a decision of the RRT[70] or an ‘AAT protection visa decision’[71] another more favourable decision. These powers of intervention are exercisable in the public interest. They are significant because by exercising them the Minister is able to grant a protection visa applicant whatever visa the Minister thinks fit, even if the applicant does not satisfy the criteria specified in the regulations for the grant of a visa of that class. Ministerial guidelines relating to the exercise of the Minister’s power of intervention under the Migration Act 1958 (Cth) s 417 identify cases of non-citizens to whom Australia has protection obligations under the CAT and/or the ICCPR, though not the Refugees Convention, as cases in which it may be in the public interest to substitute a more favourable decision.[72] DIMIA officers have said that they expect that these guidelines will be extended to apply in relation to the recently introduced s 501J power also.[73]
Requesting exercise of the Minister’s s 417 or s 501J power, as the case may be, is the first and only opportunity asylum-seekers in danger of exclusion have to put non-Refugees Convention protection claims to a decision-maker who actually has the ability to respond meaningfully to those claims. The Minister need not, however, consider the exercise of these personal powers and even if the Minister considers and then refuses to exercise the power invoked, the Minister is not legally accountable for that decision. Australian practice in relation to those who only have non-Refugees Convention protection claims, therefore, does not meet international procedural standards, which require that there be provision for appeal against a decision to exclude unless compelling reasons of national security otherwise require.
ASIO is the competent Australian authority charged with carrying out the security assessment to which public interest criterion 4002 refers. Although technically it is the person making the protection visa decision, rather than ASIO, who determines whether public interest criterion 4002 has been met, generally that decision-maker is not made privy to the actual information upon which ASIO has made an adverse security assessment of the applicant in question.[75] This withholding of information from the protection visa decision-maker means that the decision-maker is not in a position to evaluate for himself or herself the seriousness of the danger posed by the applicant, let alone the proportionality between the danger to Australian security which is averted by removal of the applicant and the danger to which the applicant is thereby exposed. In fact, even if the information deficiency did not exist, the decision-maker could not engage in such an evaluation. The manner in which the relevant legislation is presently drafted means that public interest criterion 4002 is ‘incapable of being met if an adverse assessment is made by [ASIO]’.[76] Since reliance on the Refugees Convention art 33(2) exception requires ‘proportionality between the danger to itself which a state averts by removal of the refugee, and the danger to which the refugee is thereby exposed’,[77] the situation described quite obviously creates a substantial risk that a refugee will be returned to his or her country of origin in circumstances in which the art 33(2) exception cannot properly be invoked.
On 8 April 1998, Mr Sultan, an asylum-seeker from Kuwait, was refused a protection visa by the primary stage decision-maker on two grounds. First, he was excluded from claiming the benefit of the Refugees Convention art 33(1) because there were reasonable grounds for regarding him as a danger to the security of Australia under art 33(2).[78] Second, he had failed to satisfy public interest criterion 4002 by reason of being ‘assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security’.[79]
Mr Sultan applied to the AAT for a review of this decision. The document setting out the ASIO security assessment was provided to the AAT in full, but Mr Sultan himself was provided with a censored copy. The AAT ordered that part of the censored material be made known to Mr Sultan. The Director-General of Security appealed the order to the Federal Court on the basis that disclosure of the material to Mr Sultan would be prejudicial to national security. Mr Sultan cross-appealed seeking knowledge of all of the censored material on the basis that natural justice required that he be given a meaningful opportunity to refute the case against him and that such an opportunity was denied to the extent that adverse allegations and/or evidence were kept secret from him. The Federal Court decided that it did not have to deal with the substantive issues because it accepted the Director-General’s argument that, although the AAT had power to entertain the application for review, in so far as the delegate decided the matter under art 33(2) of the Refugees Convention, it would be futile for it to do so while the adverse security assessment remained in place.[80]
Fortunately for him, Mr Sultan had a particularly dogged legal representative. That legal representative made representations to the Director-General of Security alleging defects in ASIO’s security assessment process and simultaneously lodged a complaint to the same effect with the Inspector-General of Intelligence and Security (‘IGIS’).[81] The Director-General of Security responded to the representations made to him by instigating a ‘rigorous and critical’ internal review.[82] The principal conclusions of that review as paraphrased by the IGIS were as follows:
ASIO relied on adverse reports from an overseas security service which were internally inconsistent;
ASIO took no action to corroborate the allegations in the reports, contrary to internal guidelines;
The reports should have been viewed with scepticism because ASIO knew that the country concerned has been assessed as having a poor human rights record, particularly in relation to the ethnic group to which the applicant belonged;
ASIO did not have reasonable grounds to believe the applicant had been untruthful in his statements supporting his application for a protection visa;
ASIO failed to seek from the applicant an explanation of the adverse imputations in the reports from the overseas security service before it issued the assessment. Had it done so it is likely that he would have been able to provide satisfactory responses.[83]
Following the internal review, the Director-General of Security withdrew the adverse security assessment relating to Mr Sultan and directed a review of other adverse assessments then in place.[84] Upon review by ASIO of the adverse security assessment, the Minister for Immigration permitted Mr Sultan to make a fresh protection visa application.[85] The fresh application was successful.[86]
The Director-General of Security has now instituted a requirement that protection visa applicants be interviewed by ASIO prior to the issuance of adverse security assessments.[87] There is no requirement, however, that ASIO disclose adverse material to the applicant[88] or even provide a statement of grounds for an adverse assessment. By contrast, the Australian Security Intelligence Organisation Act 1979 (Cth) s 37(2) provides, in respect of ASIO’s security assessments of persons who are Australian citizens or Australian permanent residents:[89]
An adverse or qualified security assessment[90] shall be accompanied by a statement of the grounds for the assessment, and that statement:
(a) shall contain all information that has been relied on by the Organisation in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and
(b) shall for the purposes of this Part, be deemed to be part of the assessment.
The only circumstances in which a statement of grounds may be withheld from an Australian citizen or permanent resident is if the Attorney-General has certified in writing that ‘the disclosure ... of the statement of grounds contained in a security assessment in respect of the person, or of a particular part of that statement, would be prejudicial to the interests of security.’[91] In other words, making the withholding of adverse material the rule rather than the exception in the asylum-seeker context is demonstrably not the least oppressive means of achieving a legitimate national security goal and is therefore a breach of international procedural standards.
The IGIS can, at the request of the responsible Minister, by the IGIS’s own motion or in response to a complaint, conduct formal inquiries into the activities of ASIO.[92] The IGIS’s powers of investigation[93] have been described as ‘powers almost of a standing royal commission’.[94] However, all that the IGIS can do upon completion of an inquiry into ASIO’s activities is to present a report of the IGIS’s conclusions and recommendations to the head of ASIO and the responsible Minister, or, alternatively, the Prime Minister if the inquiry was conducted in response to the Prime Minister’s request.[95] If the agency head does not ‘take, within a reasonable period, action that is adequate and appropriate in the circumstances’, all the IGIS can do is report this to the responsible Minister and the Prime Minister[96] and mention the matter in the IGIS’s annual report to Parliament.
In January 1999, a complaint was made to the IGIS on behalf of a protection visa applicant whose application would have been successful but for an adverse security assessment by ASIO.[97] The IGIS conducted a formal inquiry and reported in June 1999 that the security assessment in question ‘had been conducted in a proper and legal manner’.[98] However, he did not think he ‘could or should express a view on the merits of the ASIO assessment.’[99] The IGIS then went on to point out that, although no independent merits review of qualified or adverse security assessments was available to protection visa applicants, merits review by the Security Appeals Division of the AAT of qualified or adverse security assessments was available to Australian citizens.[100] The IGIS recommended to the Attorney-General that the government introduce legislation enabling protection visa applicants whose application would have been successful but for a qualified or adverse security assessment likewise to obtain independent merits review of that assessment.[101] This recommendation was not implemented because the Minister for Immigration was not in favour of doing so, for reasons not specified publicly.[102] It is, in fact, difficult to conceive of any reasons the Minister could persuasively put forward. The threat to national security posed by a particular individual at a particular point in time can surely be no more or less by reason simply of his or her immigration and citizenship status. This means there can be no objective justification for according less procedural fairness to an asylum-seeker who may pose a threat to national security than to a citizen or permanent resident who may pose a similar threat. It follows that the present restriction on asylum-seekers’ right to independent, impartial and effective review cannot be characterised as the least oppressive means of achieving a legitimate national security goal. It is, therefore, a breach of international procedural standards.
If Australia was serious about fulfilling its non-refoulement obligations under the CAT and the ICCPR, the basic criterion for the grant of a protection visa would be stated to be that the applicant is ‘a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol or under the CAT or under the ICCPR’. Rather than the decision being left to the uncertain discretion of the Minister for Immigration, protection visa decision-makers at both primary and merits review stages would then have jurisdiction to grant protection visas to persons owed protection obligations only under the CAT and/or the ICCPR and not under the Refugees Convention.
The fact that public interest criterion 4002 is a requirement for the grant of a protection visa additional to that of being a person to whom Australia ‘has protection obligations under the Refugees Convention’ is obviously not conducive to the fulfilment of those obligations, let alone fulfilment of obligations under the CAT or the ICCPR. This is a situation that can easily and responsibly be remedied. In the aftermath of September 11, the United Nations High Commissioner for Refugees (‘UNHCR’) has suggested that states set up specialised exclusion units to process the claims of onshore asylum-seekers suspected of terrorism or serious crimes.[103] The UNHCR has further suggested that the proposed exclusion units have links with intelligence and law enforcement agencies, but be staffed by refugee law experts who also have specialised knowledge of terrorist organisations and criminal law.[104] The purpose of these suggestions is to facilitate the making of exclusion decisions as part of the refugee determination process rather than separately from it.[105] If Australia was to implement the UNHCR’s proposal, it would then be practicable to impose a requirement that the staff of the exclusion unit have the same level of security clearance as ASIO officers. In such a context, there could be no objection to giving the protection visa decision-maker access to all of the information on which the security risk posed by the applicant is assessed and hence no need for the satisfaction of public interest criterion 4002 to be imposed as a separate requirement for the grant of a protection visa.
The present division of labour between the RRT and AAT and the present preclusion of merits review of adverse ASIO assessments are likewise not conducive to the making of correct decisions. The former is a problem because the AAT, which is presently charged with reviewing exclusion under the Refugees Convention art 33(2), is not in a position to be properly able to apply the proportionality requirement to the facts of the cases it reviews. The latter is a problem because it violates the international due process requirement of providing effective review of adverse decisions. Both of these problems could be solved at once if a specialised unit was established within the RRT empowered to review all aspects of protection visa decisions that rely partly or wholly on grounds presently reviewable only by the AAT and also empowered, in the course of so doing, to review security assessments on their merits. There could be no objection to this last proposal if the members of the specialised unit were required to have the same level of security clearance as ASIO officers. The practicability of providing merits review of security assessments is attested to by the fact that such review is presently available to Australian citizens and permanent residents from the Security Appeals Division of the AAT.
If they are to have a meaningful opportunity to present a case against visa refusal, asylum-seekers need to be made privy to adverse material. While there will be some cases in which compelling reasons of national security genuinely require that the secrecy of certain sensitive information be maintained, allowing the withholding of information on the basis of the mere assertion of national security grounds invites reflex or even abusive invocation of such grounds.[106] It is therefore recommended that, upon review, the member of the RRT specialised unit conducting the review should have the power to disclose information to the applicant if satisfied, in the particular case, that the interests of the applicant served by disclosure outweigh the national security interest served by non-disclosure.[107]
The Migration Act 1958 (Cth) ss 501(1) and (2) confer on the Minister or Minister’s delegate powers to refuse or cancel a visa on the ground that the applicant is not of good character. Section 501(3) gives the Minister a power that may only be personally exercised (s 501(4)) to refuse or cancel a visa on character grounds if the Minister thinks it is in the national interest to do so. The powers in ss 501(1)−(3) to refuse a visa on character grounds are discretionary. They are also quite separate from, and additional to, the s 65 power discussed in Part V above. A s 65 delegate making a primary stage protection visa decision is required, when assessing an applicant against public interest criterion 4001,[108] to consider whether there is anything that would bring the applicant within the scope of the s 501 power. If the answer is yes, the s 65 delegate is required to forward the matter to a s 501 delegate for a decision by that delegate.[109] Presumably the intent is that a refusal on character grounds is always going to be made under s 501 rather than s 65.
The RRT cannot review a decision made under s 501. The AAT, constituted by a presidential member sitting alone,[110] is able to review decisions made by a delegate of the Minister under s 501.[111] However, the AAT cannot review decisions made personally by the Minister under s 501.
Finally, the Migration Act 1958 (Cth) ss 501A and 501B give the Minister personal powers to intervene on character grounds at any stage of the normal administrative decision-making process. Section 501A provides that where a delegate of the Minister or the AAT has made a decision not to refuse or cancel a visa under s 501(1) or (2), the Minister acting under s 501A(2) or 501A(3) may, if the Minister is satisfied that it is in the national interest to do so, set aside that decision and personally refuse or cancel the visa on character grounds. Section 501B provides that, where a delegate of the Minister has made a decision to refuse or cancel a visa under s 501(1) or (2), the Minister can substitute for that decision the Minister’s personal decision to refuse or cancel the visa and can do so even where the delegate’s decision is the subject of an application for review by the AAT. Neither the AAT nor the RRT can review decisions made personally by the Minister under ss 501A or 501B.
A decision to refuse or cancel a visa made under ss 501, 501A or 501B is a privative clause decision. As explained in Part V above, subjects of privative clause decisions do not have access to judicial review in any meaningful sense. In the case of the Minister’s personal decisions under ss 501, 501A and 501B, the nonavailability of AAT review, taken together with the fact that effective judicial review is also precluded, means that those decisions are not subject to independent review of any kind.
The Migration Act 1958 (Cth) s 501(6) provides that a person does not pass the character test if:
(a) the person has a substantial criminal record; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
The onus is on the person in question to prove that he or she is of good character. MSI 254 explains that the purpose of the character test is to specify ‘a series of largely objective criteria’ which the person being assessed can be found to either meet or not meet without need for ‘protracted inquiry’.[112] According to MSI 254, this enables the decision-maker to focus upon ‘the issue of whether there is sufficient justification to exercise a discretion to allow someone who does not meet the character test to nevertheless enter or remain in Australia’.[113] There is clearly scope[114] and incentive for a person suspected of presenting a national security risk to be refused a protection visa in exercise of the character power, rather than in explicit reliance on the Refugees Convention art 33(2) or public interest criterion 4002.
In theory a decision-maker making a decision under ss 501(1)−(2), 501A(2) or 501B must comply with the Code of Procedure set out in the Migration Act 1958 (Cth) part 2, division 3, subdivision AB,[115] although in practice there is frequent noncompliance.[116]
The Code of Procedure provision of most relevance to the present context is s 57. Section 57 requires decision-makers to give an applicant particulars of information which ‘is specifically about the applicant or another person’ and which would at least be a part of the reason for refusing to grant a visa. Section 57 also requires decision-makers to invite the applicant to comment on the adverse information. Where such an invitation is issued, the decision-maker must not refuse the visa until the comment is made, or the time specified for the making of it passes.[117] Moreover, the decision-maker must have regard to the applicant’s response to the adverse information in making the decision.[118]
The s 57 requirement is more limited than it at first appears, however, because it does not apply if the information in question is ‘non-disclosable information’ or information protected by the Migration Act 1958 (Cth) s 503A. ‘Non-disclosable information’ is very widely defined and includes any ‘information or matter ... whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence’.[119] Information protected by s 503A covers any information communicated to the decision-maker ‘by a gazetted agency on condition that it be treated as confidential information’.[120] A ‘gazetted agency’ means a ‘body, agency or organisation’ that is ‘responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country’ and specified in a Gazette Notice.[121] The relevant Gazette Notice has been drafted so as to ensure that every Australian and foreign agency that could be a ‘gazetted agency’ is a gazetted agency.[122] Until recently, DIMIA took the position that the source of the protection information and the condition on which that information was communicated was also ‘information’ protected from disclosure by s 503A. The Full Federal Court in NAAO v Secretary, Department of Immigration and Multicultural Affairs[123] disagreed. This is a positive development, since the source of an allegation is often ‘the most important piece of information necessary to mount a defense’.[124]
If the Minister chooses to make a decision under ss 501(3) or 501A(3), neither the rules of natural justice nor the Code of Procedure apply.[125] However, ‘as soon as practicable’ after making the original decision, the Minister must give the person affected written notice of the decision and details of the information on which it was based (other than ‘non-disclosable information’ and protected information).[126] Where the person is a detainee, the Minister must also invite the person to make representations on the revocation of the original decision.[127] If such representations are made and the person satisfies the Minister that he or she passes the character test, the Minister acting personally has the power to revoke the original decision.[128] Neither the AAT nor the RRT can review decisions made by the Minister under s 501C.
An application for AAT review (assuming such review is available) must be made within nine days of notification of the primary decision to the person affected.[129] The AAT has no power to extend the time for the lodging of an application.[130] While time limits are an entirely proper device for attempting to achieve speedy processing, the shortness and inflexibility of this particular time limit provision is objectionable. Inflexible time limits are atypical in the administrative law context.[131] This is because of the recognition that there are always going to be some cases in relation to which compelling reasons can be advanced for extending whatever time limit has been imposed. The likelihood of such cases arising in the asylum-seeker context is, if anything, greater than in many other administrative law contexts. For example, non-English speaking asylum-seekers in the community may receive written notification of a primary stage refusal (including notification of their review rights), but may not manage to have it translated until after the nine days allowed for making an application for review have passed.[132] Last but not least of the hurdles faced by the applicant for review is the fact that, if the AAT has not made a review decision within 84 days (12 weeks) of notification of the primary decision, there is deemed affirmation of the primary decision.[133]
Provisions of the Administrative Appeals Tribunal Act 1975 (Cth) not expressly displaced apply to proceedings under the Migration Act 1958 (Cth) s 500[134] but are not of particular relevance to the present context. However, the following express provisions of the Migration Act 1958 (Cth) definitely warrant mention. Sections 503A(1)−(2) prevent the disclosure to the AAT of protected information in the usual case,[135] although s 503A(3) provides that, after consultation with ‘the gazetted agency from which the information originated’, the Minister may declare in writing ‘that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal.’ Protected information disclosed to the AAT pursuant to s 503A(3) cannot, however, be disclosed by the AAT to the applicant or any other person.[136] The Minister is required to lodge with the AAT documents containing ‘non-disclosable information’ relevant to the making of the decision. The AAT is allowed to have regard to that nondisclosable information for the purpose of review, but again is not permitted to disclose the information to the applicant.[137]
It is quite evident from the above description that in any given case the character power can, if the Minister so chooses, be exercised to refuse a visa unconstrained by even the most minimal of procedural safeguards. Placing such unhampered power in the hands of any person for any reason endangers us all, because it is antithetical to liberal constitutionalism.[138] Since all legitimate national security concerns can be adequately catered for through the protection visa application determination procedures recommended in Part V(C) above, it is recommended that the Migration Act 1958 (Cth) be amended so that the separate powers of refusal and cancellation of visas on character grounds contained in ss 501, 501A and 501B do not apply to protection visas.[139]
This article has demonstrated that Australian procedures for dealing with protection visa applicants do not have satisfactory safeguards in place to ensure that those thought to represent a national security risk are not removed in breach of Australia’s protection obligations under the Refugees Convention, the ICCPR or the CAT. The reforms recommended in this article would remedy this situation. It may be the ‘enemy’ whom we guard against oppression through such reforms, but in the long run it is also ourselves.
[*] BCom, LLB (Hons), PhD (Melb); Senior Lecturer, School of Law and Legal Studies, La Trobe University; Barrister and Solicitor of the Supreme Court of Victoria. The author gratefully acknowledges the Australian Research Council funding provided for this research through a La Trobe University Faculty Research Grant and the research assistance provided by Julian Littler.
[1] Thomas Paine, ‘Dissertation on First Principles of Government’ in Nelson Adkins (ed), Thomas Paine: Common Sense and Other Political Writings (1953) 155, 174.
[2] Commonwealth, Parliamentary Debates, House of Representatives, 21 March 2002, 1930 (Daryl Williams, Attorney-General).
[3] Dennis Atkins, ‘PM Links Terror to Asylum Seekers’, The Courier-Mail (Brisbane), 7 November 2001, 1; Mike Seccombe, ‘Politics of Fear Works Well for PM’, The Sydney Morning Herald (Sydney), 19 September 2001, 8.
[4] See, eg, Paul Daley, ‘Saddam Agents in Australia: Exiles’, The Sunday Age (Melbourne), 28 April 2002, 4.
[5] The Australian government has the opportunity to carry out various character and security checks in respect of non-citizens who apply for visitor and other temporary visas, and to deny entry to those who would pose a danger to the Australian community. However, in very many cases, character checks consist only of asking applicants questions about their character on the visa application form: Jennifer Burn and Anne Reich, The Immigration Kit: A Practical Guide to Australia’s Immigration Law (6th ed, 2001) 542. The Australian Security Intelligence Organisation (‘ASIO’) reported that in 2000−01 it had conducted 33 919 visa security checks (excluding Olympics-specific work and unauthorised arrivals): ASIO, Report to Parliament 2000–2001 (2001) 4. In other words, security checks were carried out on only a very tiny percentage of the five million visitors, 146 577 students and 76 500 working holiday-makers granted visas in 2000−01: Department of Immigration and Multicultural Affairs, Annual Report 2000−01 (2001) <http://www.immi.gov.au/annual_report/annrep01/> at 1 July 2002.
[6] This was certainly the experience of the United States, which found that the September 11 hijackers had entered the country on valid student, business or tourism visas: Oriana Zill, Crossing Borders: How Terrorists Use Fake Passports, Visas and Other Identity Documents (2001) PBS Frontline <http://www.pbs.org/wgbh/pages/frontline/shows/trail/etc/fake.html> at 1 July 2002.
[7] Alexander Downer (Minister for Foreign Affairs), cited in Lindsay Murdoch, ‘Drug Rings Turning to Boat People’, The Age (Melbourne), 27 February 2002, 3; Robert Hill (Minister for Defence), cited in Ian Henderson, ‘Canberra to Put Heat on Indonesia’, The Australian (Sydney), 25 February 2002, 4. According to ASIO, its security checking of all types of visa applicants in 2000−01 resulted in only five visa refusals or cancellations. Three of the five were assessed as likely to engage in espionage, one had an identified link to a terrorist group and one was assessed as a risk to national security because of their involvement in politically motivated violence. Only this last person was identified as an applicant for a protection visa. It was not stated whether the asylum-seeker in question had arrived in Australia without authorisation. See ASIO, above n 5, 22.
[8] According to a newspaper report, which cites a senior government official as its source, ‘[a] number of Australians who trained with Osama bin Laden’s al Qaeda terrorist network in Afghanistan are back living in Australia and their movements are monitored by security agencies’: Brendan Nicholson, ‘Al Qaeda Members Watched’, The Sunday Age (Melbourne), 5 May 2002, 1.
[9] See Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2], Suppression of the Financing of Terrorism Bill 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 (2002); Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, Review of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002: Unfinished Inquiry Report (2002).
[10] See Border Security Legislation Amendment Act 2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth); Security Legislation Amendment (Terrorism) Act 2002 (Cth); Suppression of the Financing of Terrorism Act 2002 (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth). As at 1 August 2002, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) remained unenacted.
[11] Criminal Code (Cth) div 101.1.
[12] Division 101.6.
[13] Division 101.2.
[14] Division 101.4.
[15] Division 102.
[16] Opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Refugees Convention’). Australia’s accession was lodged on 22 January 1954.
[17] Opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Refugees Protocol’). Australia’s accession was lodged on 13 December 1973.
[18] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’). Australia’s accession was lodged on 7 September 1989.
[19] Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). Australia’s accession was lodged on 13 November 1980.
[20] Recently passed legislation has given Australian authorities the power to prevent a ship or aircraft reasonably suspected to be involved, or about to be involved, in a contravention of the Migration Act 1958 (Cth) from entering, or remaining within, Australian territory: Migration Act 1958 (Cth) s 245F. Further, Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands (previously the Australian destinations most commonly chosen by people-smugglers) are now defined as ‘excised offshore places’: Migration Act 1958 (Cth) s 5. An ‘unlawful non-citizen’ (see Migration Act 1958 (Cth) ss 13−14) who manages to enter an ‘excised offshore place’ is labelled an ‘offshore entry person’: Migration Act 1958 (Cth) s 5. Section 46A(1) invalidates a purported visa application if it is made by an ‘offshore entry person’ who is an ‘unlawful non-citizen’ in Australia. Offshore entry persons can be taken to ‘declared countries’: Migration Act 1958 (Cth) s 198A. Offshore entry persons have been taken to Nauru and Papua New Guinea pursuant to this provision. Protection claims made by persons taken to declared countries are considered by officers of the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) under a process which DIMIA describes as being parallel to that employed by the Office of the United Nations High Commissioner for Refugees (‘UNHCR’). This process is different from the process, initiated by a protection visa application, which applies in mainland Australia. Offshore entry persons making protection claims, who, for practical reasons, cannot be taken to a declared country, are detained at an excised offshore place while their claims are considered by DIMIA pursuant to the same process it employs in declared countries. Persons processed in declared countries or excised offshore places who are found to be refugees may be offered access to ‘appropriate protection’ by Australia ‘should protection not be available in other countries’: DIMIA, Answer to Question 29 Taken on Notice, Additional Estimates Hearing 19, 22 February 2002: Examination of Additional Estimates 2001–2002 (2002) Senate Legal and Constitutional Legislation Committee, <http://www.aph.
gov.au/senate/committee/legcon_ctte/quest_answers/Aeo1-02_Vol%202.pdf> at 1 July 2002.
[21] In the reporting year 2000−01 (ie, before the introduction of the new border control measures) there were 1508 unauthorised air arrivals and 4141 unauthorised sea arrivals: DIMIA, Fact Sheet 73: People Smuggling (2001) <http://www.immi.gov.au/facts/73smuggling.htm> at 1 July 2002. Although the new border control measures have thus far been successful in preventing unauthorised sea arrivals reaching mainland Australia, they are unlikely to lead to a significant reduction in unauthorised air arrivals.
[22] See also Savitri Taylor, ‘Rethinking Australia’s Practice of “Turning Around” Unauthorised Arrivals: The Case for Good Faith Implementation of Australia’s Protection Obligations’ (1999) 11 Pacifica Review: Peace, Security & Global Change 43.
[23] DIMIA, Protecting the Border: Immigration Compliance (2000) ch 1 <http://www.immi.gov.au/
illegals/border2000/border11.htm> at 1 July 2002.
[24] Commonwealth, Parliamentary Debates, House of Representatives, 18 February 2002, 401 (Roger Price, Member for Chifley).
[25] The majority of the 13 015 protection visa applications lodged in 2000−01 were lodged by persons who arrived in Australia on a valid temporary visa: DIMIA, Fact Sheet 61: Seeking Asylum Within Australia (2001) <http://www.immi.gov.au/facts/61asylum.htm> at 1 July 2002.
[26] Migration Act 1958 (Cth) s 36(2).
[27] Migration Regulations 1994 (Cth) sch 2, cll 785.226, 866.225. See below n 108 for details of public interest criterion 4001.
[28] Migration Regulations 1994 (Cth) sch 2, cll 785.227, 866.226.
[29] Migration Regulations 1994 (Cth) sch 4, pt 1, 4002.
[30] Migration Regulations 1994 (Cth) sch 2, cl 866.212.
[31] Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2002, 1294 (Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs).
[32] Migration Regulations 1994 (Cth) sch 2, cl 866.215. The Minister for Immigration has the power to waive this requirement.
[33] It is important to note here that the making of a refugee status determination by a state or any other authority is declaratory and not constitutive of refugee status: Guy Goodwin-Gill, The Refugee in International Law (2nd ed, 1996) 141.
[34] Despite its apparently restrictive wording, art 33(1) also prevents a refugee from being sent to a place where he or she would be exposed to a form of persecution other than deprivation of life and freedom; in addition, it will not allow a refugee to be sent to a place where he or she has a ‘well-founded fear of being persecuted’ simply because the occurrence of persecution is not a certainty. In short, art 33(1) must be read in the light of the definition of ‘refugee’. This position is accepted in Australian practice: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.
[35] Refugees Convention art 1A(1) defines an additional category of refugee, but it is a category that has little relevance now.
[36] The interpretation of this provision will not be considered at length in this article. Rather, reliance will be placed on the conclusions drawn in work published elsewhere. Most relevant for present purposes is Savitri Taylor, ‘Reconciling Australia’s International Protection Obligations with the “War on Terrorism”’ (2002) 14 Pacifica Review: Peace, Security & Global Change 121.
[37] For detailed consideration of the interpretation of these provisions, see ibid.
[38] Philip Ruddock (Minister for Immigration and Multicultural Affairs), Direction under Section 499: Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 — Direction No 21 (2001) [2.20]–[2.21]. Since the CAT protection obligation is narrower than the ICCPR protection obligation, its implementation will not receive much separate consideration in the remainder of this article.
[39] Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, UN GAOR, 44th sess, 82nd plen mtg, Annex to GA Res 128, UN Doc A/Res/44/128 (1989) (‘Second Optional Protocol’). The Second Optional Protocol was opened for signature on 15 December 1989 and entered into force 11 July 1991.
[40] Ruddock, above n 38, [2.19], [2.21].
[41] ICCPR art 13 provides:
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
[42] Goodwin-Gill, above n 33, 307–8.
[43] The constraints specified in the Refugees Convention art 32 are additional to the non-refoulement obligation imposed by art 33: Sir Elihu Lauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion (2001) [151] (prepared for the UNHCR).
[44] Ibid [159].
[45] Office of the United Nations High Commissioner for Human Rights, General Comment 29: States of Emergency (Article 4), 1950th mtg, UN Doc CCPR/C/21/Rev.1/Add.11 (2001).
[46] Goodwin-Gill suggests that the right to knowledge of the case against oneself is part of present-day concepts of ‘due process’: Goodwin-Gill, above n 33, 306–7.
[47] David Cole, ‘Secrecy, Guilt by Association, and the Terrorist Profile’ (2001) 15 Journal of Law and Religion 267, 277.
[48] Goodwin-Gill, above n 33, 306–7.
[49] The principle of proportionality is well-established in international human rights law. The United Nations High Commissioner for Human Rights proposed it as one of several criteria that states should apply to ensure compliance with international human rights standards in the implemention of Security Council Resolution 1373 (28 September 2001): Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, GA Res 48/141, UN ESCOR, 58th sess, Annex, UN Doc E/CN.4/2002/18 (2002). All sides of the Australian debate on the issue accept the applicability of the principle, though they do not agree on whether the principle has been correctly applied in practice.
[50] Oren Gross, ‘The Normless and Exceptionless Exception: Carl Schmitt’s Theory of Emergency Powers and the “Norm–Exception” Dichotomy’ (2000) 21 Cardozo Law Review 1825, 1856.
[51] Carl Schmitt, The Concept of the Political (George Schwab trans, first published 1932, 1976 ed) 46 [trans of: Der Begriff des Politischen].
[52] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans, first published 1922, 1985 ed) 6 [trans of: Politische Theologie: Vier Kapitel zur Lehre von der Souveranitat].
[53] ‘There exists no norm that is applicable to chaos’: ibid 13.
[54] Ibid 14.
[55] According to Schmitt, ‘[t]he specific political distinction to which political actions and motives can be reduced is that between friend and enemy’: Schmitt, The Concept of the Political, above n 51, 26. ‘[T]he most extreme consequence of the political grouping of friend and enemy’ is ‘real combat’: at 35. The political enemy is ‘in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible’: at 27. However, this does not preclude the enemy being a ‘domestic enemy’: at 46.
[56] Gross, above n 50, 1841 (emphasis added) (citations omitted).
[57] Ibid 1845.
[58] This word is used advisedly. For example, originally many of the proposed ‘terrorism’ offences were absolute or strict liability offences punishable by 25 years to life imprisonment.
[59] Daryl Williams, ‘Opening Address’ (Paper presented at Globalising Terror, Political Violence in the New Millennium Conference, Hobart, 8 May 2002) <http://law.gov.au/ministers/
attorney-general/articles/globalterror.html> at 1 July 2002.
[60] The following are just three of many possible examples. During the First World War, Australia interned approximately 700 naturalised and 70 Australian-born British subjects of German ethnicity, very often ‘for no good reason’: Gerhard Fischer, Enemy Aliens: Internment and the Home Front Experience in Australia 1914–1920 (1989) 77, 86–126. During the Second World War, Australia interned 947 naturalised and 62 Australian-born British subjects of Italian ethnicity because of ‘attitudes which equated race with nationality and which regarded assimilation as a necessary precondition to citizenship’: Ilma Martinuzzi O’Brien, ‘The Internment of Australian Born and Naturalised British Subjects of Italian Origin’ in Richard Bosworth and Romano Ugolini (eds), War, Internment and Mass Migration: The Italo-Australian Experience 1940–1990 (1992) 89, 92–3. In 1951, Australia came to the brink of denying substantive and procedural rights to persons labelled as communists: see Elsa Atkin and Brett Evans (eds), Seeing Red ― The Communist Party Dissolution Act and Referendum 1951: Lessons for Constitutional Reform (1992).
[61] Attributed to Pastor Martin Niemoeller (a Dutch victim of the Nazis), cited in Margaret Piper, ‘Australia’s Refugee Policy’ (2000) 12 The Sydney Papers 79, 87.
[62] Migration Act 1958 (Cth) s 500(4).
[64] Section 500(1). Pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) s 43, the AAT is able to affirm, vary, or set aside a decision and in the last case either remit the matter for reconsideration or substitute its own decision. If the primary decision-maker’s refusal also relied upon the application to the facts of art 1A(2) or art 33(1) of the Refugees Convention or some other ground not within the jurisdiction of the AAT, the AAT upon making a finding favourable to the applicant on those matters within its jurisdiction would have to remit the case to the primary decision-maker. The other grounds of review would then have to be taken to the RRT: Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107.
[65] Director General, Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334, 338; Kaddari v Minister for Immigration and Multicultural Affairs [2000] FCA 659; (2000) 98 FCR 597, 601.
[66] Kaddari v Minister for Immigration and Multicultural Affairs [2000] FCA 659; (2000) 98 FCR 597, 602.
[67] See, eg, R v Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598.
[68] Migration Act 1958 (Cth) ss 475A, 483, 483A, 484.
[69] All the case law discussed in this article relates to applications for judicial review not caught by the privative clause provisions because they were lodged before the 1 October 2001 commencement date of the provisions: see generally Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) s 8.
[70] Migration Act 1958 (Cth) s 417.
[71] Section 501J(2) provides: ‘For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa.’ It appears, therefore, to cover an AAT decision relating to a s 501 refusal or cancellation of a protection visa.
[72] DIMIA, Migration Series Instruction 225: Ministerial Guidelines for the Identification of Unique or Exceptional Cases where It May Be in the Public Interest to Substitute a More Favourable Decision under s 345, 351, 391, 417, 454 of the Migration Act 1958 (1999) [4.2.2], [4.2.4].
[73] Evidence to Senate Legal and Constitutional References Committee, Parliament of Australia, Canberra, 21 September 2001, 15 (Jennifer Bedlington, First Assistant Secretary, Refugee and Humanitarian Division, Department of Immigration and Multicultural Affairs). This extension of the guidelines had not, in fact, occurred as at 1 August 2002.
[74] The details of ASIO’s security assessment procedures are classified and cannot be accessed through freedom of information legislation: see below n 88.
[75] DIMIA, Procedures Advice Manual 3: SCH4/4002 [11.1.4]; Commonwealth, Parliamentary Debates, House of Representatives, 6 February 2001, 24 015 (Philip Ruddock, Minister for Immigration and Multicultural Affairs).
[76] DIMIA, Procedures Advice Manual 3: SCH4/4002 [10.1.3]. See also Director General, Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334.
[77] Taylor, ‘Reconciling Australia’s International Protection Obligations’, above n 36, 134.
[78] Director General, Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334, 335.
[79] Ibid.
[80] Ibid 339.
[81] IGIS, Annual Report 1999–00 (2000) [155].
[82] Ibid [157].
[83] Ibid [159].
[84] Ibid [155], [163].
[85] Commonwealth, Parliamentary Debates, House of Representatives, 6 February 2001, 24 015 (Philip Ruddock, Minister for Immigration and Multicultural Affairs). The making of a fresh application would otherwise have been barred by the Migration Act 1958 (Cth) s 48B.
[86] IGIS, Annual Report 1999–00, above n 81, [155].
[87] Ibid [163].
[88] ASIO and the IGIS are exempt from the operation of the Freedom of Information Act 1982 (Cth) and other Commonwealth agencies are exempt from the operation of the Act ‘in relation to a document that has originated with, or has been received from’ ASIO or the IGIS: Freedom of Information Act 1982 (Cth) s 7(2A), sch 2, pt 1.
[89] Section 37(2) does not apply to security assessments unless made in respect of a person who is an Australian citizen, an Australian permanent resident or a special purpose or special category visa holder: s 36.
[90] ‘Adverse security assessment’ and ‘qualified security assessment’ are defined in s 35.
[91] Section 38(2)(b). If the Attorney-General has so certified, the AAT conducting the review of the security assessment under the Administrative Appeals Tribunal Act 1975 (Cth) s 39A is prevented from making disclosure of the document to the applicant: s 39B. If the AAT decision is appealed to the Federal Court of Australia under the Administrative Appeals Tribunal Act 1975 (Cth) s 44, the Federal Court is likewise prevented from making disclosure of the document: s 46.
[92] Inspector-General of Intelligence and Security Act 1986 (Cth) s 8(1)(a).
[94] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, 19 April 2002, 168 (Dennis Richardson, ASIO Director-General).
[95] Section s 22.
[97] IGIS, Annual Report 1998–99 (1999) [85].
[98] Ibid [88].
[99] Ibid [89].
[100] Ibid. This review is available under the Administrative Appeals Tribunal Act 1975 (Cth) s 39A.
[101] IGIS, Annual Report 1998–99, above n 97, [90].
[102] IGIS, Annual Report 1999–00, above n 81, [45]–[46].
[103] Megan Saunders, ‘Fast Track for Suspect Refugees’, The Weekend Australian (Sydney),
8–9 December 2001, 7.
[104] Michel Gabauden (Regional Representative UNHCR), ‘Asylum Considerations after 11 September 2001’ (Speech delivered at the Refugee Convention ‘Where to from Here?’ Conference, Sydney, 8 December 2001); Saunders, above n 103, 7.
[106] Cole, above n 47. Cole provides many examples drawn from his own experience in representing clients from whom information had been withheld by US authorities on what later proved to be spurious national security grounds.
[107] To the extent that judicial review of protection visa decisions continues to be available, it would be ‘the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld’: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38. See also Haj-Ismail v Madigan [1982] FCA 231; (1982) 45 ALR 379, 386; Salemi v Holding (1988) 16 ALD 697.
[108] Public interest criterion 4001 requires that either:
(a) the applicant satisfies the Minister that the applicant passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
Migration Regulations 1994 (Cth) sch 4, pt 1.
[109] Department of Immigration and Multicultural Affairs, Migration Series Instruction 254 ― The Character Requirement: Visa Refusal and Cancellation under Section 501 (1999)
[6.2.2]–[6.2.4] (‘MSI 254’).
[110] Migration Act 1958 (Cth) s 500(5).
[112] Department of Immigration and Multicultural Affairs, MSI 254, above n 109, [4.1.1].
[113] Ibid.
[114] See, eg, Migration Act 1958 (Cth) ss 501(6)(b), (c)(ii), (d)(v).
[115] Section 51A provides that the subdivision is ‘an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’ It was inserted into the Migration Act 1958 (Cth) by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) to prevent courts from finding that the Code of Procedure does not exclude common law natural justice requirements. This was the finding made in the High Court’s decision in Re Minister for Imigration and Multicultural Affiars; Ex parte Miah (2001) 179 ALR 238.
[116] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, 9 April 2002, 41 (Andrew Bartlett, Senator for Qld), citing the Law Institute of Victoria’s submission to the Committee; Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, 9 April 2002, 46 (David Manne, Co-ordinator of the Refugee and Immigration Legal Centre).
[117] Migration Act 1958 (Cth) s 63(2).
[119] Section s 5.
[122] Commonwealth of Australia Gazette: Government Notice 23 (9 June 1999) 1640. In NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCA 292; FCAFC 64 (Unreported, Spender, Gyles and Conti JJ, 20 March 2002), the Full Federal Court questioned whether this Gazette Notice sufficiently ‘specified’ gazetted agencies to be considered a valid specification for the purposes of Migration Act 1958 (Cth) s 503A(9). However, it found it unnecessary to express a concluded view on the matter for the purposes of the case and therefore refrained from doing so.
[123] [2002] FCA 292 (Unreported, Spender, Gyles and Conti JJ, 20 March 2002).
[125] Migration Act 1958 (Cth) ss 501(5), 501A(4).
[126] Sections 501C(2)–(3), 503A.
[127] Migration Act 1958 (Cth) s 501C(3), (10); Migration Regulations 1994 (Cth) reg 2.52(7).
[128] Migration Act 1958 (Cth) s 501C(4)–(5).
[129] Section s 500(6B).
[130] See Hall and Minister for Immigration and Multicultural Affairs [1999] AATA 794 (Unreported, Deputy President McDonald, 22 October 1999), rev’d on other grounds [2000] FCA 415; (2000) 97 FCR 387.
[131] Typical provisions are the Administrative Appeals Tribunal Act 1975 (Cth) s 29 and the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11 which give the AAT and the Federal Court respectively the power to extend the time allowed for the making of an application for review under those Acts.
[132] Many asylum-seekers are not able to read the English language. However, in Nguyen v Refugee Review Tribunal [1997] FCA 293; (1997) 74 FCR 311, the Full Federal Court dismissed the argument that the requirement of ‘notification’ means that recipient must have knowledge of the contents of the notice. It held that translation into a language understood by the recipient was not a prerequisite for notification of a primary decision to be effective.
[133] Migration Act 1958 (Cth) s 500(6L).
[134] Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378, 391 (Gray J).
[135] See Re Chan and Minister for Immigration and Multicultural Affairs [2001] AATA 487; (2001) 33 AAR 191 for an example of nondisclosure to the AAT of protected information.
[136] Migration Act 1958 (Cth) s 503A(5).
[138] See Part IV(B) above.
[139] The Migration Regulations 1994 (Cth) should also be amended so that public interest criterion 4001 is no longer a requirement for the grant of a protection visa additional to that of being a person to whom Australia has international protection obligations.
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