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Doctor of Philosophy January 2011 THE “SAFE THIRD COUNTRY” APPROACH vs. THE NOTION OF NON-REFOULMENT IN INTERNATIONAL LAW: A CRITICAL EXAMINATION OF AUSTRALIAN LAW AND POLICY By SHAMSER SINGH THAPA A Thesis submitted in total fulfillment of the requirements of the degree of Doctor of Philosophy January 2011 SCHOOL OF LAW University of Western Sydney Supervisors: Professor Carolyn Sappideen Dr. Michael Head, Associate Professor The “Safe Third Country” Approach vs. the Notion of Non- Refoulement in International Law: A Critical Examination of Australian Law and Policy Ph.D Thesis by Shamser S Thapa, dedicated To My Late mother Yuddha Kumari Thapa Acknowledgment To my family and friends, I wish to express my eternal gratitude for your encouragement, support, and patience throughout this arduous undertaking. To all my professional colleagues at Simon Diab & Associates, thank you for your sustained encouragement. Finally, to my academic supervisors, Prof. Carolyn Sappideen, Dr Michael Head and Dr. Montserrat Gorina-Ysern and other academics and staff of the School of Law at the University of Western Sydney, thank you for your learned guidance, without which this thesis would have remained a hypothesis. List of Acronyms AAT Administrative Appeals Tribunal BRCA Burmese Rohingya Community Australia CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CCR Canadian Council for Refugees CROC Convention on the Rights of the Child DIAC Department of Immigration and Citizenship DIMIA Department of Immigration and Multicultural and Indigenous Affairs ECOSOC United Nations Economic and Social Council ECRE European Council on Refugees and Exiles EU European Union FCA Federal Court of Australia FMCA Federal Magistrates Court of Australia HCA High Court of Australia ICCPR International Covenant on Civil and Political Rights IGCR Inter-Governmental Committee on Refugees ICJ International Court of Justice IDP Internally Displaced Person MOU Memorandum of Understanding NATO North Atlantic Treaty Organization NGO Non Government Organisation NZ New Zealand NZIS New Zealand Immigration Service NZSIS New Zealand Security Intelligence Service RRT Refugee Review Tribunal RSAA Refugee Status Appeal Authority PRC People‘s Republic of China TPV Temporary Protection Visa UDHR Universal Declaration of Human Rights UK United Kingdom UNGA United Nations General Assembly UNHCR United Nations High Commissioner for Refugees USA United States of America USSR Union of Soviet Socialist Republics VCLT Vienna Convention on the Law of Treaties Table of Contents Chapter One Introduction 1 1.1 Background 2 1.2 Definition – Key Concepts 4 1.3 Purpose of the Study 7 1.4 Structure of the thesis 9 1.5 Australia and Refugee Convention 12 1.6 Application for asylum: in Australia 14 1.6.1 Boat people arrival: Reality 15 1.7 Refugee flow: Comparative study with other nations 17 1.8 Sovereignty versus international obligations 19 Chapter Two The Refugee Convention: Historical Background 21 2.1 Introduction 22 2.2 Historical context: Development of ―Refugee‖ definition 22 2.3 Persecution under the Nazi Regime: A Driving Force of the Refugee Convention 24 2.4 The Cold War: Another Historical Context for the Refugee Convention 25 2.5 Definition of ―Refugee‖ Under the Refugee Convention and 1967 Protocol 26 2.5.1 ―Refugee‖ and ―Internally Displaced Persons‖ 28 2.5.2 ―Refugees‖ and ―Other Migrants‖ 29 2.6 Criticism of Convention definition 29 2.6.1 Vague definition 30 2.6.2 Difficulty to separate ―refugee‖ and ―other migrants‖ 31 2.6.3 Strict eligible criteria for ―refugee‖ 32 2.6.4 Limited scope 32 2.6.5 Not contemporary 33 2.7 The Rights of a ―Refugee‖ 33 2.8 Debate on refugee 36 2.9 Statue of the Office of the United Nations High Commissioner for Refugees 38 2.10 Protection of the Refugee in the Country of Safeguard 41 2.11 Summary 43 Chapter Three Article 33 and the Notion of “Safe Third Country” and “Effective Protection” : Origins and Background 44 3.1 Introduction 46 3.2 The Intentions of the Framers of Refugee Convention and Meaning of Article 33(1) of the Refugee Convention 47 3.3 Analysis of Article 33(1) of the Refugee Convention 51 3.3.1 Art 33 (1) of the Refugee Convention 52 3.3.1.1 ‗Contracting States‘ 52 3.3.1.2 ‗expel or return (refouler) … in any manner whatsoever‘ 52 3.3.1.3 ‗to the frontiers of territories‘ 53 3.3.1.4 ‗where his or her life or freedom would be threatened‘ 54 3.3.1.5 ‗on the account of …‘ 54 3.3.2 Wider interpretation given to Art 33(1) 55 3.3.2.1 need for individual assessment of each case 55 3.3.2.2 mass influx 56 3.3.2.3 Article 33: ‗refugee‘ 57 3.3.2.4 ‗risk of life or freedom‘ or ‗fear of persecution‘ 59 3.3.2.5 magnitude of threat 61 3.3.3 Non-refoulement – Summary 62 3.3.4 Development and meaning of ‗Safe Third Country‘ notion 65 3.3.4.1 ‗STC‘ and International Laws; the non-refoulement obligation 66 3.3.4.2 Rationale for ‗STC‘ 68 3.3.5 Concept of ‗effective protection‘ 73 3.3.6 Concept of ‗durable solutions‘ 74 3.4 Principle of Non-Refoulement in International Law 76 3.4.1 characteristics of customary international law and Art 33(1) 76 3.4.1.1 non-refoulement as a customary international law 77 3.4.1.2 argument ‗against‘ non-refoulement as a customary international law 80 3.4.1.3 Concluding view: non-refoulement as a customary law 82 3.4.2 Principle of non-refoulement and jus cogen 82 3.4.2.1 Argument ‗against‘ non-refoulement as jus cogen 85 3.4.2.2 non-refoulement as jus cogens - conclusion 86 3.4.3 Impact on application: ―customary law or jus cogens‖ 89 3.5 International Human Rights Law and Non-Refoulement 90 3.5.1 International Covenant on Civil and Political Rights 91 3.5.2 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 92 3.6 International norms and Domestic Policy 94 3.7 Conclusion 95 Chapter Four Implementation of the Refugee Convention in Australia 98 4.1 Introduction 99 4.2 Politico-Legal Sensitivity of Refugee Law in Australia 100 4.3 Development of Australia‘s Refugee Policy 106 4.3.1 Recent development in refugee issue 110 4.4 The Development of Australia‘s Refugee Legislation 113 4.4.1 Family Reunion and Temporary Protection Visa 120 4.4.2 The On-Shore Refugee Determination System 126 4.4.3 Status During Processing 127 4.4.4 Assessment of Claims and Merits Review 128 4.4.4.1 Assessment of Claims 128 4.4.4.2 Merits Review 129 4.4.4.3 Right to Judicial Review 130 4.5 Definition of ―Refugee‖ under Migration Act 1958 131 4.6 Can Australia Justify its Responses to the Refugee Convention? 133 4.6.1 Reservations 134 4.6.2 Limitation Clauses 134 4.6.3 Derogations 135 4.6.4 Denunciations 137 4.7 The Exclusion and Cessation Clauses in the Refugee Convention 137 4.7.1 The Exclusion Clauses 138 4.7.2 The Cessation Clauses 142 4.8 The Tension between the Executive and the Judiciary 149 4.9 Antagonisation of the Refugee 154 4.10 The Need for a Compassionate Approach by Australia 156 4.11 Conclusion 157 Chapter Five Doctrine of effective protection: Development in Australia 159 5.1 Introduction – doctrine of ‗effective protection‘ in Australian case laws 161 5.2 The Doctrine of Effective Protection: Thiyagarajah 163 5.2.1 Thiyagarajah and its Implications 169 5.2.2 Effective Protection – Judicial Development 170 5.3 Where to Now? A Closer Look at the Decision in NAGV 174 5.3.1 NAGV: The Facts and the Appeal to the Full Federal Court 175 5.3.2 The Decision of the High Court 177 5.3.3 Critique of the High Court‘s Decision in NAGV 182 5.3.4 Legislative Response 183 5.4 Conclusion – ‗effective protection‘ principle in judiciary interpretation 186 5.5. Legislative development of ‗safe third country‘ notion in Australia 189 5.6 Existing Law Relating to the Safe Third Country Issue: The Statutory Provisions 191 5.6.1 Statutory Prescription of ―Safe Third Countries‖ 193 5.6.2 Statutory Effective Protection under Section 36(3)-(7) of the Migration Act 198 5.7 Justification of the ―Safe Third Country‖ Provisions 203 5.8 What if the Safe Third Country Refuses to Admit the Refugee? 205 5.8.1 Al-Kateb v Godwin: Case Summary 205 5.8.2 Al-Kateb v Godwin: Judicial Outcome on Indefinite Detention 206 5.8.3 Al-Kateb v Godwin: Justifications Given 206 5.8.4 Al-Kateb v Godwin: A Further Analysis 210 5.9 Safe Third Country Provisions: The Infirmities of the Concept in Practice 212 5.10 The Future for Effective Protection? 217 5.11 Australia: Test Case (non-refoulement, STC, effective protection and durable solution) 219 5.12 Conclusion 225 Chapter Six Regional Instruments Developed to Share Burden in Relation to Refugee Protection 230 6.1 Introduction 231 6.2 Comprehensive Plan of Action ―Indo Chinese Refugees‖ 232 6.3 UNHCR‘s Convention Plus and Agenda Protection 233 6.4 Africa 234 6.5 Latin America 236 6.6 Asia-Africa Legal Consultative Organisation 238 6.7 The European Union Approach 238 6.7.1 Resolution on the Harmonisation Approach to Questions concerning Host Third Country 242 6.7.2 The Maastricht Treaty 243 6.7.3 Schengen Agreement 243 6.7.4 Dublin Convention 244 6.7.5 Treaty of Amsterdam 245 6.7.6 Hague Programe 247 6.7.7 Directive on Minimum Standards on Procedure in Member States for Granting and Withdrawing Refugee Status 248 6.8 Canada-USA: STC Agreement 251 6.9 Australia‘s Regional Co-operation Mechanism 257 6.9.1 Bali Process on People Smuggling and Trafficking 260 6.9.2 Bilateral agreement with surrounding countries in Pacific Region 261 6.9.3 Civil Society Organisations 263 6.10 Conclusion 265 Chapter Seven The “Safe Third Country” in other Western Signatory States: A Comparative Analysis 267
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