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Assessing the Cause and Effect of Persecution in Australian Refugee Law: Sarrazola, Khawar and the Migration Legislation Amendment Act (No 6) 2001 (CTH)

Published online by Cambridge University Press:  24 January 2025

Alex de Costa
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Extract

Upon reading the Migration Legislation Amendment Bill (No 6) 2001 (Cth) to the House of Representatives for a second time, the Minister for Immigration and Multicultural Affairs ('the Minister’) stated that,

[i]n the absence of clear legislative guidance, the domestic interpretation of our obligations has broadened out under cumulative court decisions so that Australia now provides protection visas in cases lying well beyond the bounds originally envisaged by the convention.

The Migration Legislation Amendment Act (No 6) 2001 (Cth) (the ‘No 6 Act’) became law on 1 October 2001. It was one of a number of amending statutes (passed by both Houses of Parliament in late September 2001) that were intended to fundamentally alter procedural and substantive areas of immigration and refugee law in Australia. This paper discusses aspects of the No 6 Act which amended the Migration Act 1958 (Cth) (the ‘Migration Act’) by inserting a new Subdivision AL into Part 2, Division 3.

Type
Research Article
Information
Federal Law Review , Volume 30 , Issue 3 , September 2002 , pp. 535 - 559
Copyright
Copyright © 2002 The Australian National University

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Footnotes

*

the author thanks the anonymous referee for the Federal Law Review for helpful comments.

References

1 Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30420(Phillip Ruddock, Minister for Immigration & Multicultural Affairs).

2 On 26 and 27 September 2001, the Commonwealth Parliament passed: the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth); the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); the Migration Legislation Amendment Act (No 1) 2001 (Cth); the Migration Legislation Amendment Act (No 5) 2001 (Cth); the Migration Legislation Amendment Act (No 6) 2001 (Cth); the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

3 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

4 Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

5 Migration Act, s 36(2).

6 For the purposes of ease of reference throughout this paper, a reference to a person's country of nationality is a reference to a person's country of former habitual residence unless the context indicates otherwise.

7 See Convention, art 33(2).

8 Crock, Mary, Immigration & Refugee Law in Australia (1998) 126Google Scholar

9 Ibid 127.

10 This formulation derives from Chappel v Hart (1998) 195 CLR 232, 255 (Gummow J). For the applicability of common law principles of causation in the context of determining refugee status see below and also the discussion of Mark Leeming, 'When is Persecution for a Convention Reason?' (2000) 7 Australian Journal of Administrative Law 100, 103.

11 (2002) 187 ALR 574 ('Khawar').

12 (2001) 107 FCR 184 (Heerey, Sundberg and Merkel JJ) ('Sarrazola (No 4)').

13 (2000) 170 ALR 553 ('Chen')

14 Ibid 570.

15 Walter Kalin, 'Non-State Agents of Persecution and the Inability of the State to Protect' (2001) 15 Georgetown Immigration Law Journal 415. See also Helene Lambert, 'The Conceptualisation of “Persecution” by the House of Lords: Horvath v Secretary of State for the Home Department' (2001) 13 International Journal of Refugee Law 16, 21; Deborah Anker, Lauren Gilbert and Nancy Kelly, 'Women Whose Governments are Unable or Unwilling to Provide Reasonable Protection from Domestic Violence May Qualify as Refugees Under United States Asylum Law' (1997) 11 Georgetown Immigration Law Journal 708, 728 who write that,

the 'non-state agent' doctrine is established in United States asylum law; it is an evolving concept under international human rights principles. International law also has begun to address the complex issue of a standard for evaluating whether or not the state has failed to take reasonable action to protect against such non-state harm.

16 Kalin, above n 15, 415. Kalin observes that

[t]he nature of persecution is changing, as evidenced by the increasing frequency of persecution of minorities by their neighbours belonging to the majority, ethnic cleansing or even genocide carried out by militias, terrorist attacks and killings by groups claiming to fight in the name of a religious creed, or attacks on the civilian population by insurgent groups fighting for independence. Although statistics are not available, it is highly likely that the majority of today's refugees are fleeing dangers emanating from non-state agents.See also European Council on Refugees and Exiles, Research Paper on Non-State Agents of Persecution (Autumn 2000) <http//:www.ecre.org/research/nsagents.pdf> at 27 November 2002.

17 United Nations High Commissioner for Refugees, UNHCR's Observations on the European Commission's Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons who Otherwise Need International Protection, 12 September 2001, COM (2001), 2001/0207(CNS)) 2.

18 Khawar (2002) 187 ALR 574, 580.

19 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1995) 3.

20 United Nations High Commissioner for Refugees, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (2001) 19.

21 Guy S Goodwin-Gill, The Refugee in International Law (2nd ed, 1996) 70.

22 As Gleeson CJ observed in Khawar (2002) 187 ALR 574, 581:

[t]he references in the authorities to state agents of persecution and non-state agents of persecution should not be understood as constructing a strict dichotomy. Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm.

23 This analysis is consistent with that of Brennan CJ in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 ('Applicant A'), 233, who was not in dissent in making the following statement: '[t]he feared “persecution” of which Art 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution … [s]econdly, the feared persecution must be discriminatory.'

24 As McHugh J stated in Applicant A (1997) 190 CLR 225, 258,

[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.

Note the distinction here between discriminatory intent and persecutory intent. Leeming recognises that the latter is not a precondition to a finding of persecution: Leeming, above n 10, 101.

25 Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30422 (Phillip Ruddock, Minister for Immigration & Multicultural Affairs). See also Commonwealth, Parliamentary Debates, House of Representatives, 20 September 2001, 31119–20 (Geoffrey Prosser).

26 Department of the Parliamentary Library Information and Research Services, 'Migration Legislation Amendment Bill (No 6) 2001' (2001–02) Bills Digest 55. See also Sobet Haddad, 'Qualifying the Convention Definition of Refugee' (2002) 1 Immigration Review 20, 22.

27 On 17 February 1999, Hely J delivered judgment in Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 ('Sarrazola (No 1)'). The application in those proceedings was filed in 1998.

28 Sarrazola (No 1) [1999] FCA 101 (Hely J);Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 ('Sarrazola (No 2)') (Einfeld, Moore and Branson JJ); Sarrazola v Minister for Immigration and Multicultural Affairs [2000] FCA 919 ('Sarrazola (No 3)') (Madgwick J); Sarrazola (No 4) (2001) 107 FCR 184 (Heerey, Sundberg and Merkel JJ).

29 Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30420 (Phillip Ruddock, Minister for Immigration & Multicultural Affairs).

30 Background facts taken from Merkel J's judgment in Sarrazola (No 4) (2001) 107 FCR 184,187–8.

31 The effect of s 36(2)(b) of the Migration Act was that if Ms Sarrazola's application for a protection visa was successful, her husband and children would also be entitled to protection visas.

32 Sarrazola (No 1) [1999] FCA 101.

33 Sarrazola (No 2) (1999) 95 FCR 517 (Einfeld, Moore and Branson JJ).

34 Sarrazola (No 3) [2000] FCA 919.

35 Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113, [42]–[44] (Sackville J); C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366, 377 [33] (Wilcox J); Sarrazola (No 1) [1999] FCA 101, [36] (Hely J).

36 (1998) 85 FCR 458 (Black CJ, Branson and Finkelstein JJ).

37 (1997) 190 CLR 225.

38 (2001) 107 FCR 184, 195.

39 See the portion of the RRT decision extracted in Madgwick J's decision in Sarrazola (No 3) [2000] FCA 919, [47].

40 [1999] FCA 101, [44]–[45].

41 See Jahazi v Minister for Immigration & Multicultural Affairs (1995) 61 FCR 293; Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576; Thalary v Minister for Immigration & Multicultural Affairs (1997) 73 FCR 437; Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73; Hellman v Minister for Immigration & Multicultural Affairs (2000) 175 ALR 149.

42 (2001) 107 FCR 184, 196 where Merkel J referred to a line of authority that establishes the proposition that the RRT, as an inquisitorial body, is required to examine all the material put before it to determine any valid basis of protection. This is so regardless of the way the claims are put by the applicant: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, 62–63; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285, [15]; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287, 293; Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157, 180 [114]; Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113, [58] [59].

43 Ibid.

44 See Haddad, above n 26, 23.

45 Department of the Parliamentary Library Information and Research Services, above n 26, 15.

46 Persecution of this type is defined by s 91R(2)(d) of the Migration Act.

47 [1999] 2 AC 629 ('Islam').

48 (2000) 170 ALR 553, 570.

49 [1999] 2 AC 629, 654.

50 As Hill J noted in the Full Federal Court in Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501, 516-517, 'one must take care, with respect, not to be distracted by the abhorrence civilised people undoubtedly have of the persecution of the Jews in Nazi Germany.'

51 (1999) 168 ALR 190.

52 (2002) 187 ALR 574, 602.

53 (1999) 168 ALR 190, 194 [18].

54 Kalin, above n 15, 416.

55 Reinhard Marx, 'The Notion of Persecution by Non-State Agents in German Jurisprudence' (2001) 15 Georgetown Immigration Law Journal 447, 450.

56 Their Honours observed as follows:

In Minister for Immigration and Multicultural Affairs v Haji Ibrahim, Callinan J and Gummow J left open the question whether the “accountability” theory should be accepted. The submissions made by the Minister in this case … to a degree seek an acceptance of that theory. However, it is again unnecessary to determine whether the theory should be accepted: Khawar (2002) 187 ALR 574, 592.

57 Marx, above n 55, 454 explains the protection-based approach in the following terms:

(a) protection-based approach to the Convention therefore examines whether the claimant has a well-founded fear of persecution by reasons set out in the Convention. If that is the case, it does not matter whether the State has collapsed. Rather, the granting of protection follows the assessment of a well-founded fear.

58 See references below to Ben Vermeulen et al, Persecution by Third Parties (University of Nijmegen Centre for Migration Law, May 1998) <http://www.jur.kun.nl/cmr/articles/ thirdparties.pdf> at 27 November 2002; Fradaric Tiberghien, 'Persecution by Non-Public Agents' in Refugee and Asylum Law: Assessing the Scope for Judicial Protection (1997) 105; Marx, above n 55; Kalin, above n 15.

59 Indeed, it was clearly this perception that informs the legislative intent of s 91S of the Migration Act.

60 RRT Reference N98/21419, [12].

61 Ibid.

62 During the hearing of the appeal before the High Court, the extensive and thorough nature of the submissions made on behalf of Ms Khawar was noted: see Transcript of Proceedings, Minister for Immigration & Multicultural Affairs v Khawar S128/2001(High Court of Australia, 13 November 2001).

63 United States Department of State Bureau of Democracy, Human Rights and Labor, 'Pakistan Country Report on Human Rights Practices for 1997' 30 January 1998 <http://www.americanfriends.org/kashmir/K.12html> at 12 December 2002.

64 RRT Reference N98/21419.

65 Khawar v Minister for Immigration & Multicultural Affairs (1999) 168 ALR 190, 197 [31] where

her Honour endorsed the following statement:

[i]t is only after the relevant particular social group, if any, has been identified that a decision-maker can sensibly give consideration to the question whether the applicant has a well-founded fear of persecution for reason of his or her membership of that particular social group (emphasis omitted).

66 This reading of her Honour's judgment is consistent with that taken in the Full Federal Court by Lindgren J with whom Mathews J expressed agreement: Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501, 529–30.

67 As noted above, s 36 of the Migration Act incorporates into Australia's domestic law its obligations pursuant to the Convention.

68 Khawar v Minister for Immigration & Multicultural Affairs (1999) 168 ALR 190, 196 [28], 197 [33].

69 Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501 (Mathews and Lindgren JJ, Hill J in dissent).

70 Ibid 533.

71 Ibid 534.

72 Islam [1999] 2 AC 629, 653.

73 Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501, 535–6.

74 Ibid 536 (emphasis omitted).

75 Khawar (2002) 187 ALR 574.

76 Ibid 578 (Gleeson CJ).

77 Kalin, above n 15.

78 Antonio Fortin, 'The Meaning of “Protection” in the Refugee Definition' (2001) 12 International Journal of Refugee Law 548.

79 Atle Grahl-Madsen, The Status of Refugees in International Law vol 1 (1966).

80 Khawar (2002) 187 ALR 574, 579–80 where Gleeson CJ termed this protection in the 'narrower sense'.

81 Ibid 579 where Gleeson CJ termed this protection in the 'broader sense'.

82 These definitions of external and internal protection are taken from Kalin, above n 15, 425.

83 Khawar (2002) 187 ALR 574, 589.

84 Atle Grahl-Madsen, above n 79, 255.

85 Khawar (2002) 187 ALR 574, 580.

86 Ibid 591. Their Honours took this from United Nations High Commissioner for Refugees, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (2001), fn 81. See also Khawar (2002) 187 ALR 574, 580 where Gleeson CJ stated:

accepting that, at that point of the Article, the reference is to protection in the narrower sense, an inability or unwillingness to seek diplomatic protection abroad may be explained by a failure of internal protection in the wider sense, or may be related to a possibility that seeking such protection could result in return to the place of persecution.

87 This originates from Gender Guidelines for the Determination of Asylum Cases in the UK (1998).Refugee Women's Legal Group, <http://www.nadir.org/nadir/initiativ/linksrhein/ archiv/c/c000205.htm#Section3> at 10 December 2002. It was accepted by Lord Hoffman in Islam [1999] 2 AC 628, 653 and Kirby J in Khawar (2002) 187 ALR 574, 603.

88 James Hathaway, The Law of Refugee Status (1991) 112.

89 See Catherine Phuong, 'Persecution by Third Parties and European Harmonization of Asylum Policies' (2001) 16 Georgetown Immigration Law Journal 81, 87–8.

90 [2001] 1 AC 489, 495; see also Adan v Secretary of State for the Home Department [1999] 1 AC 293, 304 (Lord Lloyd of Berwick).

91 Zalzali v Canada (Minister of Employment and Immigration) [1991] 3 FC 605, 609–10.

92 Butler v Attorney-General [1999] New Zealand Arbitration Reports 205, 216–7.

93 Khawar (2002) 187 ALR 574, 603–4.

94 Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501, 536–7.

95 Khawar (2002) 187 ALR 574, 594.

96 Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501, 533.

97 Consequently, their Honours' reasoning is not susceptible to the type of criticism that is often made of the accountability theory. For example, it has been suggested that the accountability theory's main weakness is its implicit assumption that refugee law should be informed by the principles of state responsibility that have developed in public international law. In that context, Kalin criticises the accountability theory for 'presuppos[ing] a violation of basic duties by the country of origin, turning every grant of asylum into an implicit accusation against that country': Kalin, above n 15, 423.

98 See Khawar (2002) 187 ALR 574, 591, where McHugh and Gummow JJ endorsed the statement of the United Nations High Commissioner for Refugees, above n 86, [36] as follows:

there now exists jurisprudence that has attributed considerable importance in refugee status determination to the availability of state protection inside the country of origin … [t]his somewhat extended meaning may be, and has been, seen as an additional ȁthough not necessary –argument in favour of the applicability of the Convention to those threatened by non-state agents of persecution.

99 In this sense, their Honours' approach is consistent with the construction advocated by both Kalin and Fortin and to some extent represents a compromise between the protection- based and accountability theories: see Kalin, above n 15, 431.

100 Khawar (2002) 187 ALR 574, 583.

101 Ibid 582 (Gleeson CJ).

102 See Leeming, above n 10.

103 (2000) 170 ALR 553.

104 The RRT stated that such disadvantages would include 'denial of access to subsidized food, health and education and all other welfare benefits for many years, probably beyond the time when he turns seven': see the passage from the RRT's reasoning quoted in Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] FCA 622, [11] (French J).

105 The Full Court of the Federal Court in Chen had concluded that the appellant (the respondent before the Full Federal Court) did not face persecution 'by reason of being a member of the social group of “black children"'. He faced persecution 'by reason of his parents' conduct (as Chinese nationals) in contravening the relevant laws of China: Minister for Immigration and Multicultural Affairs v Chen Shi Hai (an infant) by his next friend Chen Ren Bing (1999) 92 FCR 333, 342 (O'Loughlin and Carr JJ).

106 [1998] FCA 622.

107 (2000) 170 ALR 553, 562 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); 571–2 (Kirby J).

108 [2000] FCA 855.

109 [2000] FCA 855, [26].

110 [2000] FCA 855, [27]–[32].

111 (2000) 170 ALR 553, 569.

112 Ibid.

113 Ibid 570.

114 Ibid.

115 Ibid 572.

116 (1999) 92 FCR 333, 342.

117 (1998) 87 FCR 112.

118 Ibid 118.

119 (1997) 190 CLR 225.

120 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

121 (1997) 190 CLR 225, 254.

122 (1991) 171 CLR 506, 515.

123 (1998) 87 FCR 112, 118.

124 [1998] FCA 622.

125 (1999) 169 ALR 167, 192.

126 (2000) 175 ALR 149.

127 [1999] FCA 205.

128 (2000) 175 ALR 149, 161.

129 Ibid 160.

130 As noted above, this formulation derives from Chappel v Hart (1998) 195 CLR 232, 255 (Gummow J).

131 Leonardo Franco, 'Legal Issues Arising from Recent UNHCR Operations: Introduction' in Vera Gowlland-Debbas (ed), The Problem of Refugees in the Light of Contemporary International Law Issues (1996) 3.

132 See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 20 September 2001, 31119-22 (Geoffrey Prosser).

133 (1997) 191 CLR 559.

134 Ibid 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

135 (2000) 170 ALR 553, 569.

136 But see, Mahesparam v Minister for Immigration & Multicultural Affairs [1999] FCA 459, [30] where Madgwick J stated that 'if (imputed) political opinion plays a substantial part in the persecution feared by the applicant, that would be persecution “for reasons of … … political opinion” within the meaning of the Convention' (emphasis added).

137 As noted, McHugh J endorsed this proposition in Applicant A (1997) 190 CLR 225, 254.

138 Ibid 231–2.

139 (2000) 105 FCR 548, 565 [80].

140 Sarrazola (No 4) (2001) 107 FCR 184, 193.

141 See Phuong, above n 89, 87–8.

142 Section 474(1) of the Migration Act provides that '[a] privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account'. Section 474(2) provides that a privative clause decision 'means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)'. As such, s 474(1) applies to all decisions of the RRT and the Migration Review Tribunal.

143 The High Court is presently reserved on two matters raising the constitutional validity and effect of the privative clause found in s 474 of the Migration Act: Plaintiff S157 of 2002 v The Commonwealth of Australia S157/2002; Applicants S134/2002, Ex parte—Re MIMIA & Anor S134/2002. Judgment was reserved on 4 September 2002.

144 On 15 August 2002, a specially convened Full Federal Court delivered judgment in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. It dealt with appeals from five first instance judgments dealing with the scope and effect of s 474: Turcan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 397 (Heerey J); Applicant NAAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 263 (Gyles J); Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 281 (Tamberlin J); Jian Zhong Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 (Mansfield J); Ratumaiwai v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 311 (Hill J). The effect of the Full Court's decision in NAAV v Minister was summarized by Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108, an analysis endorsed by the Full Federal Court in NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 300, [23] which stated that '[b]roadly speaking, the effect of s 474(1) is to protect a decision of the RRT from challenge under s 39B(1) of the Judiciary Act provided that the three so-called Hickman conditions are satisfied and the RRT has not contravened an “inviolable statutory condition”.'