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SUBMISSIONS TO THE REFUGEE REVIEW TRIBUNAL REGARDING s.91R(3) MIGRATION ACT 1958 [1]

Basis for receipt of submissions by the Tribunal

1. The Human Rights and Equal Opportunity Commission ("the Commission") seeks to make submissions to the Tribunal pursuant to paragraphs 11(1)(g), (o) and (p) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act").

2. This Tribunal is not bound by technicalities or rules of evidence. [2] As such, the Commission submits that this Tribunal has power to accept the submissions of non-parties in such circumstances as it considers appropriate.

3. While the Commission contends that that power should not be subject to the tests normally applied by Courts in relation to applications for leave to intervene, the Commission submits that those tests are satisfied in relation to the Commission's intervention in this matter.

4. The proceedings before this Tribunal involve issues of general principle and public importance that may affect, to a significant extent, persons other than the Applicant. Those issues include matters relevant to the human rights of people applying for protection visas under the Migration Act 1958.

5. As set out in annexure A to these submissions, the Commission has statutory functions in relation to the human rights of such people. Examples of relevant activities undertaken pursuant to those functions are set out in annexure B to these submissions.

6. The Commission submits that it has:

(a) a legitimate concern in making submissions in relation to the human rights of people applying for protection visas;

(b) an interest in the subject of the litigation greater than a mere desire to have the law declared in particular terms; [3]

(c) an ability to make submissions which the Tribunal might consider that it "should have to assist it to reach a correct determination"; [4]

(d) special knowledge and expertise relevant to the issues that are the subject of the proceedings; and

(e) an ability to make submissions which differ from those of the Applicant and are likely to "assist the [Tribunal] in a way in which the [Tribunal] would not otherwise have been assisted". [5]

7. No practical considerations militate against the receipt of these submissions because:

(a) the Applicant has received adequate notice of the Commission's intention to make submissions to the Tribunal;

(b) the Applicant has received adequate notice of the outline of submissions proposed to be made by the Commission in the event that they are accepted; and

(c) the scope of the Commission's proposed submissions is strictly limited to issues not addressed by the Applicant.

Section 91R(3) of the Migration Act 1958

8. The Commission understands that one of the issues likely to arise before this Tribunal is whether certain actions relied upon by the Applicant in relation to the Applicant's application for a protection visa should be disregarded pursuant to section 91R(3) of the Migration Act 1958, which is in the following terms:

For the purposes of the application of this Act and the regulations to a particular person:

(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

That section was inserted in the Migration Act 1958 by the Migration Legislation Amendment Act (No.6) 2001.

9. During the Second Reading Speech in relation to the Migration Legislation Amendment Act (No.6) 2001, the following comments were made regarding the insertion of section 91R(3):

I am also concerned about court decisions that have recognised the claims of applicants who have deliberately set out to contrive claims for refugee status after arriving in Australia.

Such action, deliberately seeking to attract hostile attention from a home country government, makes a mockery of an applicant having a real fear of persecution.

The legislation will make it clear that any actions by a person taken after arrival in Australia will be disregarded unless the minister is satisfied that the actions were not done just to strengthen claims for protection.

The convention was not intended to provide protection to applicants who contrive claims in second or third countries and who have no other basis for claims to refugee status.

10. This Tribunal may have regard to the material in the second reading speech to confirm (or, to the extent that section 91R(3) is ambiguous, determine) the meaning of section 91R(3) of the Migration Act 1958. [6]

Outline of Commission's argument

11. To the extent that issues regarding the interpretation and application of section 91R(3) arise in this matter, the Commission submits that:

  • section 91R(3) should be construed in accordance with the normal principles of statutory interpretation, including those principles regarding the relevance of Australia's obligations under international human rights instruments;

     
  • Australia's obligations pursuant to article 19(2) of the International Covenant on Civil and Political Rights (the ICCPR) [7] are relevant to the interpretation of section 91R(3); and

     
  • having regard to those matters, conduct engaged in by a person in Australia applying for a protection visa should not be disregarded pursuant to section 91R(3) if that person satisfies the Minister (or, in this case, the Tribunal) that, in engaging in such conduct, they were not acting for the sole purpose of setting up a fraudulent claim for a protection visa.

Relevance of international law

12. It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, so as not to be inconsistent with the comity of nations and established rules of international law. [8] If the Parliament intends to effect inconsistency "it must express its intention with irresistible clearness to induce a Court to believe that it entertained it." [9]

13. Where there is ambiguity, the High Court has held that courts should favour a construction of a statute that accords with the obligations of Australia under an international treaty. [10] The High Court has said that a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations. [11] In more recent cases, the High Court has indicated that a narrow conception of ambiguity is to be rejected. [12]

14. The Commission submits that wherever the language of the statute is susceptible to a construction that is consistent with the terms of the relevant international instrument and the obligations that it imposes on Australia, that construction must prevail. Although it is open to the Australian Parliament to legislate inconsistently with these norms, ordinary processes of statutory construction mean that a domestic statute is to be interpreted and applied as far as its language admits so as not to be inconsistent with established rules of international law. In other words, where the text of a statute is susceptible to a construction consistent with the terms of the international instrument and general international law, then courts and tribunals should adopt that construction.

15. Those considerations apply with even more force when one is dealing with a statute such as the Migration Act 1958, that seeks to implement Australia's obligations under international human rights instruments (being the Refugees Convention 1951 and the Optional Protocol relating to the Status of Refugees 1967). [13]

Article 19(2) of the ICCPR

16. The term "conduct" in section 91R(3) appears to encompass all forms of expression, including oral, written or artistic communication. In those circumstances, it is relevant to note that article 19(2) of the ICCPR provides that:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

17. Article 19(3) of the ICCPR permits certain limitations on the right to freedom of expression, including such restrictions as are "necessary …for the protection of public order". Public order may be defined as "the sum of rules which ensure the peaceful and effective functioning of society". [14]

18. The notion that any such limitations should be "necessary" for the protection of public order requires that they be "proportional" in intensity and severity to that purpose. [15] This means that:

… interference [with the rights conferred by article 19(2)] must be interpreted narrowly in cases of doubt [16]

The United Nations Human Rights Committee has indicated that the principle of proportionality must be applied in the context of article 19 of the ICCPR so as to "tightly constrain" the limitations permitted by article 19(3) that would otherwise destroy the right to freedom of expression. [17]

19. The effect of section 91R(3) is to undermine the right to freedom of expression by withdrawing the fundamental protection of the Refugees Convention, protection from refoulement (considered further below in para 24), for certain conduct engaged in while in Australia.

20. The Commission submits that, having regard to the Second Reading Speech in relation to the Migration Legislation Amendment Act (No.6) 2001 and the principle that legislation should be construed consistently with Australia's international obligations, this Tribunal should accept the following propositions:

  • In enacting section 91R(3), Parliament was seeking to address situations in which the applicant for a protection visa engages in conduct in the nature of a "deliberate contrivance" [18] (in other words, where the applicant deliberately attempts to set up a fraudulent claim).

     
  • In light of the fact that section 91R(3) has the potential to impinge upon freedom of speech and in the absence of a contrary intention, it should be assumed that Parliament did not intend to go beyond that limited purpose, which may be characterised as a purpose of protecting "public order" within the meaning of article 19(3) of the ICCPR.

     
  • As such, the term "purpose of strengthening the person's claim" in section 91R(3) should be interpreted narrowly and strictly confined to "fraudulent purposes". Any broader interpretation than that advanced above would disproportionately impinge upon the rights conferred by article 19(2) of the ICCPR.

     
  • It is further submitted that conduct is only to be disregarded under section 91R(3) where any such fraudulent purpose is the sole purpose for which a person engaged in that conduct. This follows in part from the singular language employed in section 91R(3) (which refers to "the purpose"). Such a construction is also consistent with article 19 of the ICCPR, in that it represents an appropriately proportionate means of achieving the desired end of eliminating "deliberately contrived claims" without unduly obstructing freedom of expression. Finally, such a construction is consistent with the material in the second reading speech which indicates that the section is directed at actions that are "done just to strengthen claims for protection" [19] (emphasis added).

Convention Relating to the Status of Refugees

21. The Commission submits that the propositions outlined above regarding the construction of section 91R(3) are further supported by established domestic law as well as considerations arising from the Convention Relating to the Status of Refugees 1951 and the Optional Protocol Relating to the Status of Refugees 1967.

22. The Commission notes that there has been some controversy as to whether a person's entitlement to protection as a refugee "sur place" under the Convention Relating to the Status of Refugees 1951 (read with the Optional Protocol relating to the Status of Refugees 1967) is conditioned by a requirement that any activities said to found a "sur place" claim be undertaken in good faith. After reviewing the conflicting international and Australian authorities, the majority of the Full Federal Court in Mohammed v Minister for Immigration and Multicultural Affairs concluded that there was no such requirement. [20]

23. The insertion of section 91R(3) obviously alters the position taken by the Full Court as regards an application for a protection visa under the Migration Act 1958. However, in construing that section it must be assumed, in the absence of a contrary indication, that Parliament did not intend to depart entirely from established domestic law and Australia's international obligations under the Convention Relating to the Status of Refugees 1951 and the Optional Protocol relating to the Status of Refugees 1967. Indeed, the passage from the Second Reading speech extracted above indicates that Parliament proposed to adhere to the terms of those international instruments.

24. It is established law in Australia that the principle of non-refoulement is central to determining whether Australia has "protection obligations under the Refugees Convention as amended by the Refugees Protocol" under s.26(2) Migration Act. [21] The principle has been described as the "engine room" of the Refugees Convention, [22] and requires that a person not be returned to a country in which they face persecution.

25. Section 91R(3) conflicts with this principle by requiring, in certain circumstances, that a decision-maker ignore conduct undertaken within Australia (such as the public expression of political views) which may expose a person to persecution if they are returned to a country. Consequently, the Commission submits that the section should be read as narrowly as possible so as to avoid undue inconsistency with this central principle of non-refoulement.

26. The Commission's submission is further supported by accepted interpretations of the good faith limitation as that concept is understood in international jurisprudence. [23] It is relevant to note that even the proponents of a "good faith" requirement have been careful to limit its extent. By way of example, Grahl-Madsen has described that limitation in the following terms:

If a person has committed some act and as a result is liable to persecution because the authorities of his home country read a political motivation into his action, we have a repetition of the theme that the behaviour of the persecutors is decisive with respect to which persons shall be considered refugees: he is in fact a (potential) victim of persecution 'for reasons of (alleged or implied) political opinion' and may consequently invoke the Convention on an equal footing with those who were motivated by true political beliefs. But we may have to draw a distinction among the former, between those who unwittingly or unwillingly have committed a politically pertinent act, and those who have done it for the sole purpose of getting a pretext for claiming refugeehood. The former may claim good faith, the latter may not. The principle of good faith implies that a Contracting State cannot be bound to grant refugee status to a person who is not a bona fide refugee (emphasis added). [24]

27. That passage is consistent with the construction of section 91R(3) advanced above by the Commission.

January 2001

Annexure A

The following statutory functions of the Commission are relevant to the human rights of people applying for protection visas under the Migration Act 1958:

(i) where the Commission considers it appropriate to do so with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues (section11(1)(o) of the HREOC Act);

(ii) to examine enactments and (when requested to do so by the Minister) proposed enactments to ascertain whether they may be, are, or would be inconsistent with or contrary to any human right and to report to the Minister the results of any such examination (section 11(1)(e) of the HREOC Act);

(iii) to inquire into any act or practice that may be inconsistent with or contrary to any human rights (section 11(1)(f) of the HREOC Act);

(iv) to promote an understanding and acceptance, and the public discussion, of human rights in Australia (section11(1)(g) of the HREOC Act);

(v) to undertake research and educational programs, on behalf of the Commonwealth, for the purpose of promoting human rights (section11(1)(h) of the HREOC Act);

(vi) to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights (section 11(1)(j) of the HREOC Act);

(vii) to report to the Minister as to the action (if any) that needs to be taken by Australia in order to comply with the provisions of the International Covenant on Civil and Political Rights, of the Declarations (being the Declaration of the Rights of the Child, the Declaration on the Rights of Disabled Persons, the Declaration on the Rights of Mentally Retarded Persons) or of any relevant international instrument (defined as the Convention on the Rights of the Child and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief) (section 11(1)(k) of the HREOC Act); and

(viii) to do anything incidental or conducive to the performance of any of the preceding functions (section 11(1)(p) of the HREOC Act).

For the purposes of the above provisions, the phrase "human rights" is defined in section 3 of the HREOC Act to mean the rights and freedoms recognised in the international instruments referred to in paragraph (vii) above.

Annexure B

The following are relevant activities undertaken pursuant to the Commission's functions under the Human Rights and Equal Opportunity Act 1986:

  • National Inquiry into Children in Immigration Detention, announced 28 November 2001, to be conducted in 2002.
  • Submission to the Senate Legal and Constitutional Committee Inquiry into Migration Legislation Amendment Bill (No.6) 2001.
  • Human Rights and International Law implications of Migration Bills, briefing paper, 21 September 2001. *
  • Human rights violations at the Port Hedland Immigration Processing Centre; HRC Report No. 12, 28 November 2000. *
  • Report on the Human Rights Commissioner's Visit to Curtin IRPC, July 2000. *
  • Report of an Inquiry into Complaints of Acts or Practices Inconsistent With or Contrary to Human Rights in an Immigration Detention Centre, HRC Report No.10, 29 June 2000. *
  • Immigration Detention Centre Guidelines, March 2000. *
  • Review of Immigration Detention Centres, 1998-99. *
  • Submissions to Senate Legal and Constitutional References Committee into Australia's refugee and humanitarian programmes, May 1999. *
  • Those who've come across the seas: Detention of unauthorized arrivals, report of the Human Rights and Equal Opportunity Commission into the detention of unauthorised arrivals in Australia, 1998.

Copies of reports submissions referred to above and marked with "*" can be found at the Commission's website: https://humanrights.gov.au/our-work/asylum-seekers-and-refugees.

1. This is an edited version of submissions made by the Human Rights and Equal Opportunity Commission in a case before the Refugee Review Tribunal in January 2002. The submissions have been edited to avoid identifying the identity of the applicant and the particular details of the applicant's case.

2. See section 420(2) Migration Act 1958.

3. Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan CJ.

4. Levy v State of Victoria (1997) 189 CLR 579 at 603 per Brennan CJ.

5. Levy v State of Victoria (1997) 189 CLR 579 at 604 per Brennan CJ.

6. See section 15AB(1) of the Acts Interpretation Act 1901 (Cth).

7. Adopted by UN General Assembly 16 December 1966. Signed for Australia 18 December 1972. Instrument of ratification, with declarations and reservations, deposited for Australia 13 August 1980. Entry into force for Australia 13 November 1980 (UNTS 1197 p411).

8. Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.

9. Murray v Charming Betsy (1804) 2 Cranch 64, 118; also United States v Fisher (1805) 2 Cranch 390 and the authorities cited in footnote 10 therein.

10. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.

11. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 per Gummow J.

12. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. Generally A Simpson & G Williams, 'International Law and Constitutional Interpretation' (2000) 11 Public Law Review 205 at 208; J Spigelman, 'Access to Justice and Human Rights Treaties' (2000) 22 Sydney Law Review 141 at 149.

13. Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 at 693 and 697 per von Doussa J.

14. Joseph S "The International Covenant on Civil and Political Rights" OUP 2000 at p396, para [18.26].

15. See the decision of the United Nations Human Rights Committee in Gauthier v Canada 633/95. The United Nations Human Rights Committee is the United Nations human rights treaty body created under article 28 of the ICCPR. Amongst other things, the United Nations Human Rights Committee hears complaints submitted by individuals under the Optional Protocol to the ICCPR. While the decisions or 'views' of the United Nations human rights treaty bodies are not binding on this Tribunal, Australian courts and tribunals give weight to the views of specialist international courts and the human rights treaty bodies established to supervise implementation by States parties of their obligations under the provisions of particular human rights treaties. See, as examples of references to the jurisprudence of human rights treaty bodies by Australian courts: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para [38] per Kirby J; Commonwealth v Bradley (1999) 95 FCR 218, per Black CJ at 237; Commonwealth v Hamilton [2000] 108 FCR 378 per Katz J at p387, paragraph [36].

16. Nowak M, "The UN Covenant on Civil and Political Rights", NP Engel 1993 p351, para [37].

17. See the decision of the United Nations Human Rights Committee in Faurisson v France (550/93), particularly the opinion of Mr Lallah at paragraph 13. See also S Joseph, op cit, at p392, paragraph [18.18].

18. See the passage from the Second Reading Speech in relation to the Migration Legislation Amendment Act (No.6) 2001 extracted above.

19. Ibid.

20. [1999] FCA 868 (28 June 1999), see Spender J at [10] and French J at [47], cf Carr J at [92].

21. See, for example, Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685, Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526.

22. Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 167 ALR at 185.

23. See Commonwealth v Hamilton [2000] 108 FCR 378 per Katz J at p385, paragraph [31] and Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 264-5 per Brennan J.

24. Grahl-Madsen A, "The Status of Refugees in International Law", Vol 1, Sijthoff Leyden, 1966 pp251-52. See to similar effect the reasons of Gummow J in Somaghi v MILGEA (1991) 31 FCR 100 at pp116-8.

 

Last updated 6 March 2002.