My post earlier today about Margo Kingston’s SIEV X ramblings generated numerous comments, including one by the esteemed Jozef Imrich which approvingly linked an article by refugee advocate Julian Burnside QC.
Now I don’t share Professor Bunyip’s typically jaundiced doubts about the goodness or sincerity of Burnside’s motives, but it’s abundantly clear that he’s allowing his normal legal rigour to be overborne by passionate commitment to a cause.
As commenter Tysen puts it, Burnside:
“inaccurately phrases his interpretation as beyond dispute and implies (or even expressly alleges) dishonesty on the part of all others who are simply taking a different, but perfectly reasonable, interpretation.”
Two specific examples from Burnside’s article deserve highlighting. The first is his claim that “Our treatment of them [asylum seekers] constitutes a grave crime against our own laws“. This assertion is certainly legally disputable at the very least, and Burnside should know it. His argument is based on the domestic enactment in the Australian Criminal Code of an offence of crimes against humanity, constituted when:
(a) the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and
(b) the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Burnside should be aware that the High Court held (in Chu Kheng Lim’s case in 1992) that mandatory detention of asylum seekers was lawful and did not amount to imprisonment. It held instead that “the power to expel or deport a particular alien, and the associated power to confine under restraint to the extent necessary to make expulsion or deportation effective” was executive in nature and not punitive. That rationale was again upheld in the more recent litigation that followed the Tampa incident.
Of course, the Criminal Code provision expresses itself somewhat more broadly than just “imprisonment”. There may be a crime against humanity where there is a serious deprivation of physical liberty short of imprisonment. Certainly mandatory detention of asylum seekers would seem on first blush to be a serious deprivation of liberty. But the first principle of statutory interpretation is that any legislative provision must be construed purposively. What was the “mischief” at which it was aimed? There’s a pretty cogent argument that the offence was not aimed at prohibiting administrative detention incidental to effective enforcement of border control and deportation possessed by all sovereign states. The High Court also observed in Chu Kheng Lim (albeit somewhat disingenuously some would think) that:
“it always lies within the power of a designated person to bring his or her detention in custody to an end by requesting to be removed from Australia.”
Application of that sort of reasoning might well lead to the conclusion that mandatory detention is not a serious deprivation of physical liberty, in that in one sense that deprivation is self-induced (although that’s hardly a consolation to failed applicants who really are refugees, because return to their country of origin isn’t a viable option).
Another, and perhaps even stronger, argument against Burnside’s interpretation is that normally a later general enactment (in this case the new provisions of the Australian Criminal Code) will not be construed as being intended to amend or repeal an earlier specific enactment (in this case the detailed mandatory detention provisions of the Migration Act) unless that intention is very clear. Manifestly it isn’t clear, and that wasn’t Parliament’s intention.
Another (but more confusing) argument against the Burnside view is that the mandatory detention regime is not properly described as “part of a systematic attack directed against a civilian population”. Burnside argues that the policy is directed against a particular “cohort” of the civilian population, namely asylum seekers who’ve arrived in Australia illegally without a visa. However, in a somewhat different context the High Court has held that asylum seekers whose sole unifying characteristic is a shared determination to break a particular set of laws in their country of origin can’t be regarded as a “particular social group” for the purpose of the Refugee Convention. An analogous argument is that a group of people whose sole unifying characteristic is breach of Australia’s migration entry laws could not properly be classified as an identifiable cohort of the “civilian population” on that account alone, when the breach of those laws is both the thing they’re complaining of as a crime against humanity and the characteristic that makes them a “civilian population”. The reasoning is inherently circular. They’re not being subjected to detention as a civilian population (or identifiable part thereof), but because they choose to break laws of general application.
The second misleading argument Burnside attempts to present as self-evidently correct is one he makes after recounting a particularly horrendous story about the torture of Iranians in political detention. Burnside then mounts the following argument, basing it on a particular recent case:
An Iranian whose claim for asylum had been rejected lives in fear of return to these conditions. He applied to the court for orders preventing the Government from returning him to Iran. The case theory was simple: the power to remove a person from Australia does not go so far as allowing the Government to send him to a place where he faces torture or death.
The Government sought to strike out the claim without a trial on the facts. When a party to litigation seeks to strike out the claim on that basis, they assume all the alleged facts to be true, and argue that those facts have no legal consequences. So, as in the Woomera escapees’ case, the Government argued on the basis of facts which were to be assumed. The government’s argument was this: It does not matter that he will be killed when he is returned; it does not matter that he will be tortured when he is returned, nevertheless the Government has the power and the obligation to return him to the place where that will happen. The press shows no discernible interest in these matters, but it amounts to nothing less than our government actively contending for the inevitable torture or death of a human being.
To understand the context of Burnside’s argument, you need to know the legal and historical context (which few readers do). Burnside is referring to the vexed situation of refugees “sur place”. That is, applicants who may not have been refugees when they arrived in Australia, but who have become refugees by virtue of something that has happened since they arrived, so that they now have a well-founded fear of persecution for a Convention reason even though they didn’t previously. The classic situation of refugees sur place was that of Chinese students in Australia at the time of the 1989 Tienamen Square massacre. Many of them understandably and spontaneously protested in Australia against the slaughter of their brother students back in China. As a result, they feared persecution by Chinese authorities if forced to return after they finished their studies. They were allowed to stay in Australia.
These genuine refugees sur place are to be contrasted with fraudulent applicants who calculatedly do something outrageous in Australia that they know will offend authorities in their country of origin, so that they can then claim refugee status ex post facto. The best-known case of attempted fraudulent use of the refugee sur place principles is that of Heshmati in 1990 (concidentally or otherwise, an Iranian asylum seeker like the one Burnside is discussing). After being twice rejected as non-genuine, Heshmati (and another Iranian named Somaghi):
on 6 December 1989 … sent a letter to the Iranian Embassy in Canberra expressing his opposition to the Khomeini regime and the current Iranian Government. Copies of this letter were also sent by the applicant to various persons and organisations including the Prime Minister of Australia, certain Ministers of the Australian Government, various Government officials and international bodies concerned with the protection and preservation of human rights.
The SBS News Service in Australia broadcast in its 6.30 p.m. SBS News on 13 December 1989 an account of the position of the applicant and amongst other things of his expressed fears that he would be executed or imprisoned if he returned to Iran. On 14 December 1989 an article appeared in the Melbourne Herald newspaper concerning the applicant’s hunger strike.
The Minister’s Delegate, and subsequently the Federal Court, nevertheless ruled against his claim. Justice Lockhart observed:
There is some conflict of opinion as to whether an applicant for refugee status who has deliberately created circumstances in the country of residence exclusively for the purpose of subsequently justifying a claim of refugee status is entitled to be treated as a refugee sur place and this division of opinion is referred to in some of the material before the decision-makers in this case. I cannot accept that a person who has deliberately created the circumstances to which I have just referred is entitled to recognition as a refugee sur place, for to accept it would be to place in the hands of the applicant for refugee status means of unilaterally determining in the country of residence his status as a refugee and deny to the sovereign state of his residence the right to determine his refugee status.
Nevertheless, dodgy applications of this general sort continued to be made, and it was somtimes difficult to distinguish between genuine refugees sur place and fraudulent applicants trying to manufacture a spurious basis for asylum by e.g. bad-mouthing the regime in their country of origin from the safety of Australia. As a result, the Federal Parliament passed section 91R as part of the package of Migration Act reforms enacted in 2001 in the wake of the Tampa incident. The relevant part reads:
(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.
I suspect that the case Burnside is talking about is one of several recent decisions involving Iranian applicants attempting to rely on the refugee sur place provisions despite the enactment of section 91R (which clearly imposes a higher onus), of which the decision in SAAS is a good example. The facts were:
The Tribunal was not satisfied that the applicant’s conversion to Christianity in the months following his arrival in Australia was genuine. It noted that when the applicant first approached Sister Higgins and Father Monaghan he did so in a group of asylum seekers who together inquired about conversion. That fact led the Tribunal to the conclusion that the applicant’s claims to have converted to Christianity had been created for the purpose of bolstering his claims for refugee status in Australia and were not genuine. That finding was expressed in the following passage:
“The fact that the applicant approached Sister Higgins and Father Monaghan in a group suggests to the Tribunal that his decision to convert was not an individual decision based on personal experiences but was rather the result of discussions among the detainees about their claims, resulting in the group deciding to approach Sister Higgins and Father Monaghan about converting. The fact that the applicant was persistent enough to continue his line of inquiry and that he was earnest in his study of Christianity does not satisfy the Tribunal of the genuineness of his inquiry, but merely of his determination to stay in Australia.”
The Federal Court accepted that there was no legal error in the RRT’s reasoning and that the decision was open on the facts. Thus an indepedent tribunal found that the applicant in question was fraudulent, in that he had engaged in activities in Australia deliberately designed to bolster his claim to refugee status. Assuming (as I suspect is the case) that Burnside’s case is one of this group of matters, his implicit position must be that Australia should have an open door migration policy, whereby asylum seekers are free to engage in whatever self-serving behaviour they like to bring themselves within the definition of refugee. For obvious reasons, few if any other countries adopt such an approach, and Burnside is being quite mischievous in giving Margo Kingston and her coterie of admirers a misleading impression to the contrary.
Update – For the sake of completeness, dealing with another argument about whether mandatory detention of asylum seekers breaches the Australian Criminal Code, I should note that it is also arguable whether any aspect of the detention regime breaches any of the specified articles of the International Covenant on Civil and Political Rights (ICCPR). The specified articles are 9, 14 and 15. The only aspects which could be breached are:
(1) Article 9 forbids “arbitrary arrest or detention”. Given that migration detention is universal for unlawful arrivals, it could be argued that this is “arbitrary”. There does not appear to be any other aspect of Article 9 that is even arguably breached. However, the criteria for detention are clear and predictable in their operation: persons who arrive without a visa are subject to detention until their visa application is determined. Is that “arbitrary”? I guess it depends on how you define “arbitrary”. It seems to me that it is at least arguable that the mandatory detention regime does not breach Article 9 ICCPR (see further below for a reference to a relevant international decision).
(2) Article 14 paragraph 4 may conceivably be breached. It provides “In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.” However, the use of “rehabilitation” suggests that it is intended to apply only to juveniles facing criminal charges. The UN Commissioner for Human Rights argues that some aspects of Article 14 are not confined to criminal charges, but not specifically in relation to paragraph 4.
(3) There is nothing in Article 15 that is even arguably breached.
In summary, in addition to all the other arguments canvassed above, it is by no means unarguably correct that Australia’s mandatory detention regime for asylum seekers breaches the ICCPR. An appeal to the UN Human Rights Committee in 1997 in the matter of A v Australia resulted in a finding that the regime breached Article 9, but that conclusion would not necessarily be reached by an Australian court.