Closing the Borders: Current Issues in Refugee Law

Panel discussion presentation delivered at the Commonwealth Magistrates' and Judges' Association Conference, Wellington, New Zealand

Adjacent to me as I commence to prepare this short paper in late August is a copy of the "Sydney Morning Herald", with the front page headline, "Tragic Exodus".^[2] That lead article notes decisions in prospect for Australia in relation to the fate of 2,000 asylum seekers in Papua New Guinea and Nauru and compares and contrasts that with challenges presented by the 250,000 persons who have this year crossed the Mediterranean to land on the shores of Italy and Greece. September has brought with it accounts in the news media of clashes in Hungary between asylum seekers and authorities there.^[3]

According to the UNHCR and in respect of industrialised countries:

An estimated 866,000 asylum applications were recorded in 2014, some 269,400 claims more than the year before (+45%). This is the fourth consecutive annual increase and the second highest annual level since the early 1980s.^[4]

Delving further into these statistics, one finds that the vast bulk of this increase is derived from asylum applications made to member states of the European Union, particularly those in Southern Europe, applications made to Turkey and those made to the United States or Canada. The news articles mentioned offer proof that, internationally, these statistics do not record a passing phenomenon.

For Australia and New Zealand, these latest UNHCR statistics tell the opposite story, with a 23% reduction in claims recorded as between 2013 and 2014.^[5] This reduction may very well, for Australia, be the result of the impact of off-shore processing and re-settlement and other measures, some which the current Australian government has persuaded Parliament to enact, others matters of executive action, via diplomacy or naval or border protection force operations, but all becoming widely known amongst those who would seek to arrive or persons who would seek to facilitate the arrival of others in Australia without visas in order to make such claims. If so, that impact is the result of high policy value judgements made by a Nation State.

Contemporary familiarity with the definition of "refugee" in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively, the Refugee Convention) of a "refugee"^[6] should not obscure the fact that, as originally drawn, the definition was descriptive of features of the immediate post-Second World War , European phenomenon of displaced persons and those in Eastern Europe for whom the prospect of life behind the "Iron Curtain" was intolerable or worse. Before the Second World War, the concept of a "refugee" in international law was very different, initially defined in juridical terms by reference to membership of a group of persons effectively denied state protection and later reflecting a social approach which embraced only those who either de jure or de facto had lost state protection for one reason or another, including persecution. Before the 20th century, there was no discrete concept of a "refugee" at all, only persons or groups of persons that a Nation State, in the exercise of a sovereign power of border control, chose for one reason or another to admit or not to admit.^[7]

In the face of a continuance of individual asylum claims of the order of magnitude noted, the extent to which, if at all, the Refugee Convention any longer admits of feasible implementation by any or a particular Nation State may also give rise to other high policy value judgements.

The separation of powers, adherence to which for Commonwealth member countries is emphasised by the Commonwealth (Latimer House) Principles on the Three Branches of Government, necessarily means that such high policy value judgements are not for the judiciary. Yet a role which is assigned to the judiciary is in adjudicating controversies which may arise as to whether, in implementing such high policy value judgements, one or the other or each of the other branches of government has acted according to law.^[8]

In Australia, in relation to asylum claims, that assigned role has been and continues at times to be productive of tension between the judiciary and the other branches of government. The Hon. Michael McHugh AC, when a judge of the High Court of Australia, pointedly remarked on this in 2002, in an address to the Australian Bar Association Conference.^[9]

Legislative responses or executive procedures designed to manage or even deter the seeking of asylum in a particular national jurisdiction, which are found to be beyond constitutional legislative competence; or, if valid, are nonetheless found not to authorise what the executive contends they do; create jurisdictional error when not followed; or which are otherwise unlawful were then and remain productive of such tension. These tensions are not unique to this century. They are but contemporary manifestations of one of the Westminster system's formative struggles of the 17th century, that between the Crown in the person of King James I of England and Lord Chief Justice Coke in relation to the independent exercise of judicial power and the subjection of the Crown and officers of the Crown to the rule of law, as determined by an independent judiciary.^[10]

At ultimate appellate (High Court) level in Australia, the following outcomes offer recent examples of how such tension can arise:

• In 2011, a conclusion that, on the true construction of the Migration Act 1958 (Cth) Migration Act), the Gillard government's proposed "Malaysian Solution" for the transfer of unauthorised maritime arrival asylum seekers to Malaysia, which was not a signatory to the Refugee Convention, there was an absence of statutory authority for any such transfer.^[11] In Australia, it is the Migration Act which governs the issuing of a visa to an asylum seeker on the basis of satisfaction that he or she is a refugee to whom Australia has protection obligations under the Refugee Convention.^[12]
• In 2014, a conclusion that s 85 of the Migration Act did not authorise the Minister for Immigration and Border Protection to limit by instrument the number of protection visas that may be granted in a specified financial year.^[13]
• In 2015 and by way of a sequel to the 2014 case just mentioned, a conclusion that the Minister's return to the writ of mandamus which issued in that case, purportedly authorised by regulations made under that Act, of a "national interest" criterion engrafted on to the statutory criteria satisfaction of which otherwise obliged the granting of a Protection Visa, was unlawful. The Minister had purported to refuse a visa because it was not "in the national interest".^[14]

Interviewed shortly after the "Malaysian Solution" case judgment was handed down by the High Court, the then Prime Minister, the Hon. Julia Gillard MP, was reported to have observed that the High Court had missed an opportunity "to send a message" and to make "a real and meaningful contribution" to "the evil of people smuggling".^[15]

The recent cases are not all one way. CPCF v Minister for Immigration and Border Protection,^[16] also decided in 2015, exemplifies this. CPCF, the appellant (plaintiff below), was a Sri Lankan national of Tamil ethnicity, who claimed to be a refugee on the basis of having a well-founded fear of persecution in Sri Lanka. He was one of 157 other passengers on an Indian flagged vessel which had left India and was intercepted in the Indian Ocean within Australia's contiguous zone by an Australian border protection vessel crewed by officers of the Commonwealth of Australia. He had no visa entitling him to enter Australia. He was detained by those Commonwealth officers. They did not ask him whether he claimed asylum.

When the Indian flagged vessel became unseaworthy, the occupants, including the appellant were transferred to the border protection vessel. This vessel then sailed to India, pursuant to a decision of the Australian Cabinet's National Security Committee, of which the Minister for Immigration and Border Protection (Minister) was a member. Australia did not at the time have an arrangement with India which would have permitted the appellant being disembarked there. Upon reaching the vicinity of India, the appellant and other passengers were detained on the vessel for a period until the Minister decided that it was not practical to disembark him there. The passengers were then taken to the Australian External Territory of the Cocos (Keeling) Islands where they were placed in immigration detention.

The appellant instituted proceedings in the original jurisdiction, claiming that his detention was unlawful and seeking damages against the Commonwealth for false imprisonment. The Commonwealth claimed that the actions of its officers were lawful pursuant to s 72(4) of the Maritime Powers Act 2013 (Cth), which states that a maritime officer may detain a person on a detained vessel and take the person, or cause the person to be taken, to a place outside Australia. A case was stated for the Full Court of the High Court. The High Court held, by majority, that the making of a detention decision under s 72(4) was not subject to a procedural fairness obligation. It was further held that the detaining officer was not required to form any view as to the requirement for detention independent of the decision of Cabinet and that the detention was lawful even though there was not then an arrangement in place between Australia and India for the disembarking of the appellant.

In Papua New Guinea, the Supreme Court last month determined that a decision by a National Court judge to initiate under s 57 of the PNG Constitution, an inquiry into possible violations of rights and freedoms entrenched in that constitution by the detention of asylum seekers at Manus Island was void because it was affected by a reasonable apprehension of bias.^[17]

Where a court outcome is adverse to their legislative or executive actions, the temptation for these other branches of government to describe the judiciary as obstructionist or to ascribe to the judicial branch a role it does not have is a strong one. Yet it is a temptation to be resisted if public confidence in the administration of justice is not to be eroded. Conversely, the temptation for the judicial branch to step outside an assigned role of judicial review or an exercise of appellate jurisdiction in respect of such review and to stray into the path consigned to the executive of merits review in respect of a particular claim is also to be resisted.

For a judicial officer, the temptation is not remote. Collectively, asylum cases give rise to statistics but each one involves a human being who, if nothing else, sincerely and, in many instances, desperately wishes to live in the country in respect of which one is exercising judicial power. It is in the nature of judicial power that judges deal with specific cases, with individuals, not statistics. More often than not, those individuals are in court before us when we must exercise that power. The pathos of an individual case can make the temptation to develop innovative grounds of judicial review or interpretations of the reach of the Refugee Convention a strong one. Such behaviours are destructive of the legitimacy of the process of judicial review.^[18]

Both the sheer number of asylum cases and tensions between the branches of government have transformed the jurisdiction consigned to the Federal Court of Australia in relation to asylum cases over the last two decades.

To understand the transformation which has occurred, it is first necessary to provide some brief detail as to the distribution of power under the Australian Constitution and the exercise of judicial power under that constitution.

At the national level in Australia, the separation of powers is formalised in the Constitution.^[19] Judicial power can only be conferred upon and exercised by the High Court of Australia, other courts created by the Parliament and State courts invested with federal jurisdiction.^[20] Entrenched in the Constitution bys 75(v) is an original jurisdiction, exercisable by the High Court in any matter "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". The Minister administering the Migration Act, each of his delegates and a member of an administrative tribunal reviewing any such decision on the merits are each "officers of the Commonwealth" for the purposes of this entrenched judicial review jurisdiction. It is not within the legislative competence of the Australian Parliament alone to abolish this jurisdiction.^[21]

A principal, if not the principal, reason for the creation of the Federal Court of Australia in 1976 was to liberate the judges of the High Court from the exercise of original jurisdiction and the more routine appeals from the exercise of that jurisdiction and to allow them to concentrate upon the High Court's role as Australia's ultimate appellate court and in the determination of major controversies arising under the Constitution or involving its interpretation.

In relation to the judicial review of decisions of officers of the Commonwealth, this liberating was originally achieved by the conferring^[22] on the Federal Court of a procedurally liberalised judicial review jurisdiction in respect of the vast bulk of administrative decisions made by officers of the Commonwealth under statute and then by the consigning^[23] to the Federal Court of most of the judicial review jurisdiction also exercisable by the High Court in its original jurisdiction.

Neither of these original measures is now a source of original jurisdiction for the Federal Court in respect of asylum cases. Commencing in 1994 with the commencement of a 1992 statute which withdrew from the Court the original jurisdiction conferred by these measures and, in substitution, conferred on the Court a judicial review jurisdiction with restricted grounds of review,^[24] Parliament has endeavoured, within what it saw as the limits of its legislative competence, to restrict recourse to an exercise of judicial power in respect of refugee cases. This was followed by further legislative amendments to the Migration Act, which introduced privative clauses. These privative clauses have been narrowly construed by the High Court.^[25] The effect of these cases is that a private clause is not effective to withdraw from an applicant the ability to invoke the original jurisdiction conferred on the High Court by s 75(v) of the Constitution.

The fate of the privative clause response by the Parliament was to create a situation whereby unless the role of the High Court as an ultimate appellate court was to be overwhelmed by the number of cases brought in its s 75(v) original jurisdiction by asylum seekers, it was necessary for pragmatic reasons that a like original jurisdiction in respect of asylum cases be conferred on another court. The number of cases would also have overwhelmed the myriad of other jurisdictions exercised by the Federal Court. The position which now prevails is that a judicial review jurisdiction akin to that found in s 75(v) of the Constitution is exercised by the Federal Circuit Court on unrestricted jurisdictional error grounds in respect of asylum cases decided by a merits review tribunal^[26] with an appeal as of right to the Federal Court.

The present situation is unorthodox in the sense that the Federal Circuit Court is an inferior court of record and the judicial review jurisdiction it exercises in relation to refugee (and other migration) cases is akin to the jurisdiction to issue prerogative writs, historically the province of superior courts. Further, in the absence of a direction from the Chief Justice of the Federal Court based on the importance of an issue raised by a particular case, the appellate jurisdiction of the Federal Court in an appeal from the Federal Circuit Court is exercised by a single judge of the Federal Court, rather than a Full Court constituted by three or, occasionally, five judges. In each instance, necessity derived from the sheer volume of cases and their propensity to skew the ability to deal with other jurisdictions has proved the occasion for this unorthodox provision for the exercise of judicial power.

There is no appeal as of right from the exercise of the Federal Court's appellate jurisdiction. Appeals to the High Court of Australia lie only by special leave. In asylum applicant cases, where an applicant in most cases appears in person, the High Court's practice is to deal with these cases on the papers without an appearance m person.

Even though, for Australia, the number of asylum applicants has declined of late, that decline has not yet translated into a decline in judicial workload in respect of such cases. There is always a lag between the lodging of an asylum application, the exhausting of merits review rights, the hearing and determination of judicial review applications and the lodging of appeals to the Federal Court and any subsequent special leave applications. So a considerable number of cases in the Federal Court's current appeal list consist of appeals from the Federal Circuit Court in judicial review of asylum application decisions made by a merits review tribunal or other executive government official.

Even allowing for the use of historically unorthodox ways of constituting courts for the exercise of judicial power, there remains a substantial opportunity cost in terms of the allocation of judicial resources to deal with asylum seeker cases. In terms of public funds, to this cost must be added the cost of providing interpreter services and the cost of legal representation for the Minister.

Both by virtue of their volume and the ingenuity of legal practitioners and legislative draftsmen, the asylum seeker cases have occasioned much development in Australian administrative law as well as exploring the ambit of Commonwealth legislative competence and executive power in relation to migration, external, affairs and border control. Notwithstanding, for Australia, a recent fall in the number of asylum seeker applications, the course of international events suggests that there is nonetheless every prospect that this jurisprudential development and exploring will continue. The extent to which that prospect comes to pass may depend on high policy value judgments about the Refugee Convention which lie beyond the remit of the judiciary to make.

^[1]Also a judge of the Supreme and National Courts of Papua New Guinea. The views expressed in this paper are personal, not those of either of those Australian or Papua New Guinea courts or the respective national governments.

^[2] Friday, 28 August 2015.

^[3]"Asylum seekers pulled off train, throw themselves on tracks", ABC News 4 September 2015.

^[4] United Nations High Commission for Refugees, Asylum Trends 2014 Levels and Trends in Industrialized Countries: http://www.unhcr.org/551128679.html Accessed Online 27 August 2015 UNHCR Trends, p 2.

^[5] UNHCR Trends, p 8, Table I.

^[6] As affected by the 1967 Protocol, which removed geographical and temporal restrictions in the definition found in the 1951 Refugee Convention relating to the Status of Refugees, the definition in Article 1A(2) materially defines a refugee to be a person who:
"... owing to 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

^[7] JC Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, pp 2-5.

^[8] Considerations which attend these high policy value judgements were canvassed in an Australian Parliamentary Research Paper, The Problem with the 1951 Refugee Convention, prepared in 2000: http://www.aph.gov.au/About Parliament/Parliamentary Departments/Parliamentary Library/pubs/rp/rp 0001/0IRP05#problems Fifteen years later, the considerations canvassed in that paper remain, if anything magnified by the current asylum seeker numbers documented by the UNHCR.

^[9] M H McHugh, Tensions between the executive and the Judiciary, (2002) 76 ALJ 567.

^[10] The other formative struggle being that between the Crown in the person of King James I's son, King Charles I, and Parliament in relation to the ability of the Crown to make laws, including to raise revenue, without the advice and consent of Parliament.

^[11] Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144.
^[12] In the Migration Act, see s 35A as to the types of visa, s 36 as to the protection obligation criteria and s 65 as to the obligation to grant a visa
^[13]Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 722.
^[14]Plaintiff S297/2013 v Minister for Immigration and Border Protection(2015)89 ALJR 292.
^[15] "Julia Gillard versus the High Court as the PM takes aim at Chief Justice Robert French", The Australian, 2 September 2011. For an executive government viewpoint in the era when Mugh J made his observations, see, The Hon. P Ruddock, "Refugee Claims and Australian Migration Law: A Ministerial Perspective" (2000) 23(3) UNSWLJ 1.

^[16] [2015] HCA 1.

^[17]Independent State of Papua New Guinea v The Transferees, SCA No 31 of 2014, 5 August 2015. Earlier this month, the Supreme Court of PNG heard another case relating to the Manus Island Detention Centre: SCRef 1/2014 Special Reference by Principal Legal Adviser to National executive Council; Re Manus Island Centre.

^[18] Attorney-General (NSW) v Quin (1990) 170 CLR I at 38.

^[19] Chapter I is concerned with the Parliament, Chapter II, the Executive and Chapter III, the Judiciary. At this general level of abstraction, the Australian Constitution is similar to that of the United States. A fundamental difference, apart from the absence of a constitutionally entrenched "Bill of Rights", is that, in Australia, unlike in the United States, there is provision for a system of responsible government on the Westminster model whereby Ministers must be members of a House of Parliament and are responsible to Parliament.

^[20] s 71, Australian Constitution.

^[21] Abolition would require constitutional amendment, which entails both the passage of amending legislation and the approval of the amendments by popular referendum in the manner specified in s 128 of the Constitution.

^[22] Via the Administrative Decisions (Judicial Review) Act 1977 (Cth).

^[23] Vias 39B(lA) of the Judiciary Act 1903 (Cth).

^[24] s 33, Migration Reform Act 1992 (Cth), commencement deferred to 1 September 1994 by s 5 of the Migration Laws Amendment Act 1993 (Cth).

^[25] Plaintiff SJ 57/2002 v Commonwealth of Australia (2003) 211 CLR 476; see also Bodruddazza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR651.

^[26] Previously the Refugee Review Tribunal the members and role of which was, on and from 1 July 2015, taken over by the Administrative Appeals Tribunal.