The Definition of Persecution: The effect of s 91R of the Migration Act

I     Introduction

The Convention Relating to the Status of Refugees 1951 was intended to protect those fleeing persecution. However, many countries have attempted to limit this protection by narrowly defining the definition of persecution in national legislation. Persecution is at the heart of the Refugees Convention, and as such a proper interpretation is key if countries are to honour their obligations. The Refugees Convention was always intended to be interpreted in light of international human rights law. Such an interpretation ensures that contracting states protect those facing many forms of persecution. Australian courts originally followed such an interpretation when defining the term persecution within the Convention. However, the Australian Government, under the Howard administration, feared that such an interpretation was too broad and sought to limit those who would be eligible for protection under Australian law. As such, section 91R was added to the Migration Act 1958 (Cth) through the Migration Legislation Amendment Act (No 6) 2001 (Cth) as part of the Government’s Pacific Solution. Such an amendment limits the definition of persecution under the Refugees Convention to only actions that constitute a harsh interpretation of serious harm. Such a test intentionally narrows Australia’s interpretation of the Convention so as to limit the number of people who Australia will provide protection to. As such, this amendment puts Australia at odds with the original intent of the Refugees Convention, and thus against international laws on treaty interpretation.

This essay will show that the original intent of the Refugees Convention always intended to be read in light of human rights standards. An analysis of the context of the Convention and the use of international treaty interpretation will be provided. Next, Australian case law will be analysed to show how the Australian courts did indeed interpret the Convention in regards to human rights before the addition of section 91R. The political context of the amendment will be used to show that the Australian Government intentionally limited the definition of persecution in order to control who receives protection. Finally, the impact of section 91R will be used to show how Australia is now interpreting persecution too narrowly and at odds with the original intention of the Refugees Convention. As such, it will be shown that Australia is indeed in breach of its obligations under international law.

II     The International Interpretation of the Refugees Convention

The Convention Relating to the Status of Refugees 1951 and the additional Protocol Relating to the Status of Refugees 1967 seeks to provide protection for those fleeing persecution.[1] Such persons are protected if they meet the requirement of

a person who owing to a 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.[2]

Contracting states have an obligation not ‘expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.’[3] Thus the contracting state is required to assess a person’s claim of refugee status before returning such a person. However, as there is no overall authority on refugee status determination (RSD), the RSD process is left in the hands of the contracting state.[4] While the UNHCR has provided many guidelines addressing the RSD process, as will be discussed later, there are no formal obligations for contracting states for follow UNHCR’s advice on the interpretation of the Refugees Convention. As such, this provides a ‘degree of latitude in the implementation of refugee determination procedures.’[5] One such issue is the interpretation of the term persecution within the Refugees Convention.

A     The definition of ‘persecution’ under the Refugees Convention

Persecution is ultimately at the heart of the Refugees Convention. Such a person is only a refugee if they have a well-founded fear of being persecuted for one of the five convention grounds (the Nexus). As such, a clear definition of persecution is essential to the Refugees Convention. However, as Goodwin-Gill points out, ‘persecution, though a prominent feature, is not defined.’[6] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (The UNHCR Handbook) also confirms that ‘there is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success.’[7] This lack of definition can provide a wide range of interpretations between contracting states, thus causing various level of enforcement. As such, there have been a number of attempts to define persecution.

The dictionary definition of persecution is defined as ‘serious punishment or penalty or some significant detriment or disadvantage.’[8] However, as will be shown later, others have attempted to define persecution as requiring as acts resulting in serious harm.[9] Furthermore, there is a large amount of case law worldwide, including Australian case law, which also defines ‘persecution’ in various ways under various national legislations, as will be analysed below.

However, many commentators have argued that the term persecution in the Refugees Convention was intentionally undefined to provide a broader interpretation.[10] As Hathaway argues:

it is generally acknowledged that the drafters of the Convention intentionally left any meaning of “persecution” undefined because they realised the impossibility of enumerating in advance al of the forms of maltreatment.[11]

As such, persecution was never intended to be defined, so as to include a wide interpretation to effectively protect a wide range of those at risk. However, many contracting states have intended to define persecution in order to limit those who are able to receive protection under the Refugees Convention. Thus, it is important to consider how the term persecution ought to be interpreted in order to restore the convention to its ‘proper interpretation’.[12] While many countries, including Australia, have sought to restrict the definition, a proper reading of the Refugees Convention should interpret persecution widely and with regard to the international law and human rights standards.

1      The Vienna Convention as an interpretation tool for ‘persecution’

The Refugees Convention, as with all international treaties, should be interpreted in accordance with the principles of international treaty interpretation as set out in the Vienna Convention on the Law of Treaties (Vienna Convention).[13] Article 31 of the Vienna Convention states that:

a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.[14]

As such, contracting states to the Refugees Convention have a binding obligation to interpret the Convention in its clear meaning and in line with the original intent of the authors. Furthermore, Article 32 of the Vienna Convention states that when the ordinary meaning of a treaty is ambiguous or obscure,

recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning.[15]

Thus the Refugees Convention should be read in light of the original intent. It is clear that the original intent of the Refugees Convention is to provide protection to those fleeing persecution, initially in the aftermath of World War Two and then additionally broadened to all people. Thus to interpret persecution, one must understand the way the drafters understood the term. As Hathaway argues:

from the beginning, there was no monolithic or absolute conceptual standards of wrongfulness, the implication being that a variety of measures in disregard of human dignity might constitute persecution.[16]

As such the original drafters of the Refugees Convention intended for the interpretation of persecution to be read widely, ensuring that a variety of offences would constitute persecution. As Dimopoulos and Bagaric point out, the ‘Convention drafters deliberately did not define the term “persecution” with any degree of exactness, to ensure that the concept could be applied to new situations.’[17] The Vienna Convention standards would provide reason for current interpretations of the Convention to also be read in the same manner. Thus, a wide interpretation of persecution is favoured under international law. Likewise, as Hathaway points out, persecution was originally seen to include ‘measures in disregard of human dignity’.[18] Such a position would lend an argument for the Refugees Convention to be read in light of international human rights law, in order to ensure measures against human dignity are preserved in the interpretation of persecution.

2      Persecution in light of Human Rights standards

The preamble of the Refugees Convention starts by affirming ‘the principle that human beings shall enjoy fundamental rights and freedoms without discrimination’ as set forth in the United Nation Charter and the Universal Declaration of Human Rights.[19] As such, it is clear to see that the original drafters intended the Refugees Convention to be read in light of human rights standards. Commentators have sought to ensure the definition of persecution is interpreted from this perspective. Hathaway defines persecution in light of human rights law, arguing that ‘persecution may be defined as the sustained or systematic violation of basic human rights.’[20]In the same way, Goodwin-Gill argues that ‘persecution is also very much a question of degree and proportion, requiring relation of the general notion to commonly accepted principles of human rights.’[21] The UNHCR Handbook states that ‘other serious violations of human rights…also constitute persecution.’[22] Thus the definition of persecution must be read in light of International Bill of Rights, constituting the UDHR,[23] ICCPR,[24] and ICESCR.[25] As Hathaway argues:

Reference to the International Bill of Rights in deciding whether or not a state has failed to provide basic protection in relation to core, universally recognised values is moreover consistent with the Convention’s own Preamble and the General Assembly Resolution 2399…refugee law ought to concern itself with actions which deny human dignity in any key way, and…the sustained or systemic denial of core rights is the appropriate standard.[26]

As such, fundamental human rights abuses, such arbitrary depravation of life, cruel and inhumane treatment, torture, slavery, denial of recognition under the law, prosecution of ex post facto offences and denial of freedom of thought and expression should all be considered forms of persecution.[27] In addition, arbitrary detention, unfair public hearings, violations of privacy, denial of movement, denial of assembly, and discrimination in public life can also constitute persecution if the state cannot provide adequate justification for its derogation from these rights.[28] As such, the Human Rights perspective of persecution provides a comprehensive list of varying forms of persecution. However, not everyone agrees that the persecution should be read so widely through the lens of human rights standards. ‘Karl Zink [argues] that only a narrow subset of human rights violations can constitute persecution, namely, depravation of life or physical freedom.’[29] Unfortunately, many contracting states take this perspective of persecution in order to narrow the definition. As such, states compete with each other to narrow the interpretation of the Refugees Convention in order to negate their responsibilities under international law. However, as shown above, the Refugees Convention wasclearly intended to be interpreted to include human rights violations as forms of persecution. However, while serious human rights violations should be considered forms of persecution, they still need to have a causal link to the ‘for reasons of’ Nexus in the Refugees Convention. As such, in order for a person to qualify as a refugee under the Convention, human rights violations, and persecution more broadly, have to be due to of one of the five grounds listed in the Convention.

B     The Interpretation of the ‘Nexus’ grounds.

The Refugees Convention states in Article 1(A)(2) that to be a refugee, a person has to have ‘a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.[30]The Convention was established out the historical context of World War Two and the refugee crisis throughout Europe.[31] The events following the War in Europe were highly political, as tensions between the West and East grew. Thus, it is through this lens that the five grounds are used to define a person as a refugee. As such, the Refugees Convention is as much a political document as a humanitarian one. As Hathaway argues:

The strategic dimension of the definition comes from successful efforts of Western States to give priority in protection matters to persons whose flight was motivated by pro-Western political values. As anxious as the Soviets had been to exclude political émigrés from the scope of the Convention for fear of exposing their weak flank, so the more numerous and more powerful Western States were preoccupied to maximise the international visibility of that migration. In the result, it was agreed to restrict the scope of protection in much the same way as had been done in the post- World War II refugee instruments: only persons who feared ‘persecution’ because of their civil or political status would fall within the international protection mandate…The refugee definition was carefully phrased to include only persons who have been disenfranchised by their state on the basis of race, religion, nationality, membership of a particular social group, or political opinion, matters in regard to which eastern bloc practice has historically been problematic.

Therefore, the political aspects of the Refugees Convention make it somewhat difficult to apply in a modern context, especially in regards to the ‘for reasons of’ Nexus. Due to modernization and post-modern thought, people no longer define themselves so tightly within these categories. Thus, one person may be a non-practicing member of a religious group, or perhaps holds various religious beliefs. In the same way, modernization has led to multiculturalism and mixed ethnic groups, thus broadening terms such a race. As such, there is increasing difficulty in defining someone in light of these five terms. Furthermore, the link between the persecution and the nexus grounds may be a difficult requirement to prove in this context.

(a)  ‘For Reasons Of’

The Refugees Convention makes it clear that for someone to be considered a refugee, the persecution they fear has to be for one of the five reasons (the Nexus) set out in the Convention: ‘race, religion, nationality, membership of a particular social group or political opinion.’[32] As such, interpretation of persecution has to take into account the cause of the persecution, in order to consider if such a person is considered a refugee under the Refugees Convention. The UNHCR Handbook states that:

In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them.[33]

However, a direct causal link if often hard to define, leaving individual contracting states to vary on how they interpret the link between the persecution and the Nexus. As will be shown below, contracting states have approached this test in various ways, allowing for a range of outcomes. Often refugees do not fit neatly into these grounds, and the persecution they face may be caused by a number of reasons, some of which may be in relation to the Nexus. As each person is unique, there is difficulty fitting someone into a neat box. However, the UNHCR Handbook makes it clear that persecution can come from a number of reasons, and as such provides a basis for a complex understanding of the issues. While some Convention grounds are easier to define, the ground of particular social group is particularly vague.

(b)  ‘Particular social group’

The particular social group ground was introduced into the Refugees Convention by the Swedish delegate as a last minute amendment.[34] Such amendment contained very little explanation regarding its definition, except the following:

Experience has shown that certain refugees had been persecuted because they belonged to particular social groups…Such cases existed, and it would be as well to mention the them explicitly.[35]

Dimopoulos argues that such a statement was ‘effectively…a throwaway line that does not make it clear who the intended beneficiaries of this provision were.’[36] As such, there have been wide ranging interpretations of this ground. Goodwin-Gill argues that this ground should be seen as ‘clarifying certain elements in the more traditional grounds for persecution (i.e. race, religion, nationality and political opinion).’[37] This interpretation would add little difference to many seeking refugee status determination, as they would most likely already fall into one of the other four categories. Others have argued that the ground should be read widely, in order to provide protection to those who do not fit neatly into the other grounds. Arthur Helton argues that ‘the intent of the Refugee Convention was not to address prior persecution of social groups, but rather to save individuals from further injustice. The ‘social groups’ category was meant to be a catch-all which could include all the bases for and types of persecution which an imaginative despot might conjure Up.’[38] This interpretation would be more in line with a human rights approach that seeks to focus on the individual. However, various contracting states have defined the term in various ways, leaving a wide range of interpretations and policies. As will be discussed below, Australia’s interpretation of this ground has been narrowed by the addition of 91R into the Migration Act.

III     The Australian interpretation of The Refugees Convention

Australia is a signatory to the Refugees Convention, and as such has an obligation to assess those claiming refugee status. Australia was present at the opening of the Refugees Convention on 28 July 1951.[39] Australia is also a signatory to the 1967 Protocol, acceding it on 13 Dec 1973. However, Australia’s legal system does not automatically incorporate international law into domestic law, and international treaties first have to go through the domestic system of the legislature before they are applicable on a domestic level. As Mason CJ and Deane J point out in Teoh:‘it is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute’.[40] However, even if not fully incorporated into domestic law, international law still plays in important role in the interpretation of domestic law. In the landmark decision of Mabo, Justice Brennan notes that ‘the common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law’.[41] Furthermore, Australia is a signatory to the Vienna Convention described above, and thus also has obligations to interpret international treaties in ‘good faith’. This relationship plays a significant role in Australia’s interpretation of the Refugees Convention. Nevertheless, Australian law still prevails over international treaty obligations, and if appropriate, the Australian Government has the power to override common law interpretation of treaties to ensure the courts favour a certain interpretation. This is the case of section 91R of the Migration Act, as will be discussed below.

The Refugees Convention is only partly codified into Australian domestic legislation under section 36(2)(a) of the Migration Act 1958 (Cth).[42] Section 36(2)(a) states that the ‘criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.[43] However, implementation of the Refugees Convention is modified by a number of clauses. McKenzie argues that ‘because of the wording of s 36(2) of the Migration Act, set out above, which refers to “protection obligations under the Refugees Convention”, only the refugee definition in art 1A(2) is specifically incorporated.’[44] Thus, the rest of the Refugees Convention remains unincorporated, although still significant. Further more, the Migration Act requires the ‘Minister to be satisfied’[45] that a person meets the requirement. There is significant debate as to whether the legislation imposes a duty upon to Minister or provides the minister with discretionary powers.[46] If the later is favoured, this would enable the Minister to deny a person a protection visa, even if they meet the refugee status requirement. In addition, there are numerous amendments to the Migration Act that further restrict the Refugees Convention. As will be discussed below, Migration Legislation Amendment Act (No 6) 2001 (Cth) adds section 91R to the Migration Act. Section 91R seeks to define the term persecution within the Refugees Convention, thus placing additional interpretations on top of the original Convention. However, before the impact of 91R can be analysed, an assessment of the previous case law is important to understand how the amendment changed the interpretation of the Refugees Convention.

1      Australian courts definition of persecution prior to the Migration Legislation Amendment Act (No 6) 2001 (Cth)

Before Migration Legislation Amendment Act (No 6) 2001 (Cth) was introduced, courts were free to interpret the term persecution through the common law system and in light of international treaties. However, as will be discussed below, the Migration Legislation Amendment Act (No 6) 2001 (Cth) introduced section 91R that sought to refine the term persecution within the Refugee Convention through legislation. As such, a background of the previous interpretation of persecution is needed to understand the impact of section 91R.

The case of Chan v Minister of Immigration and Ethnic Affairs involved a Chinse national’s application for refugee status on the grounds of persecution for his involvement in a faction of the Red Guards. The Court was asked to find if the Federal Court properly applied the term persecution in relation to the Refugees Convention. It was found that the Federal Court did not appropriate define persecution under the Convention, with the High Court arguing that persecution can include serious punishment or penalty, or the imposition of some significant detriment or disadvantage, for a Convention reason.[47] In his judgement, Mason CJ found that the denial of fundamental rights or freedoms can constitute persecution:

The Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage…Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm.[48]

In the same case, McHugh J also suggested that affronts to human dignity can constitute persecution:

To constitute “persecution” the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purposes of the Convention and Protocol. Measures “in disregard” of human dignity may, in appropriate cases, constitute persecution.[49]

Furthermore, McHugh J argued that the denial or employment or education can also constitute persecution, in line with an International Bill of Rights interpretation of the Refugees Convention:

The denial of access to employment, to the- professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.[50]

Such a decision reaffirms the view of Hathaway that the Refugees Convention should be interpreted in light of human rights law, and thus breaches of human rights – for a convention reason – can constitute persecution. Such a case is an important victory for supporters of a human rights approach to refugee law.

In addition, McHugh J stated in Minister for Immigration and Multicultural Affairs Respondent v Haji Ibrahim that persecution for the purpose of the Refugees Convention is:

  • Unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason
  • Which constitutes an interference with the basic human rights or dignity of that person or the persons in the group
  • Which the country of nationality authorises or does not stop, and
  • Which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.[51]

Thus human rights have played an important role in the interpretation of the Refugees Convention within Australian case law. Furthermore, this perspective is also echoed in a number of other cases. In Win v MIMA, Madgwick J stated:

A denial of … civil rights would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights … The Convention aims at the protection of those whose human dignity is imperilled, the timorous as well as the bold, the inarticulate as well as the outspoken, the followers as well as the leaders in religious, political or social causes… But, of course, the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant. The Convention was intended to relieve against actual or potentially real suffering.[52]

As such, it is clear that a broad interpretation of persecution, as argued for above,has been favoured by the Courts, as emphasised by McHugh J in Applicant A & Anor v MIEA & Anor:

Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether 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.[53]

Therefore, before the Migration Legislation Amendment Act (No 6) 2001 (Cth) was introduced, the Courts took a broad view of persecution that reflected human rights law. As Dimopoulos and Bagaric point out:

Although the courts did not exhaustively define persecution, an analysis of the decided cases draws attention to two themes. The first is that the concept of persecution is connected with notions human rights and dignity. Secondly, persecution can include the deprivation of interests that do not come close to threatening subsistence.[54]

This broad view ensured that those who are at risk of persecution were not returned, even if such persecution did not amount to a threat to life. Unlike Dimopoulos and Bagaric, I argue this is a positive interpretation of the Convention that ensures maximum benefit to those who need it. However, as I discuss later, Dimopoulus and Bagaric argue against such an interpretation in order to limit those who are able to receive protection. Nevertheless, Australian Courts have favoured a human rights interpretation of persecution in regards to the implementation on the Refugees Convention within Australian domestic law. Furthermore, there is also significant case law within the Australian system regarding the ‘particular social group’ grounds found in the Nexus.

2      Particular social group as defined in Australian case law

As shown above, the Nexus ground of a ‘particular social group’ is often hard to define and various contracting states have taken different interpretations and implementations of the term. In the same way, Australian Courts have had to establish their own interpretation of the issue. In the case of Chen Shi Hai v Minister for Immigration the court heard the case of a child born to Chinese nationals.[55] The Refugee Review Tribunal found that

because [the appellant] was born outside the parameters of [China’s] One Child Policy, [and] also, and perhaps primarily, because he was born of an unauthorized marriage”, he is what is known in China as a “black child”. It also found that “black children” or “hei haizi” are a social group for the purposes of the Convention. Further, the Tribunal found that, as a “black child” in China, the appellant would be “denied access to food, education and to health care beyond a very basic level [and would] probably face social discrimination and some prejudice and ostracism.[56]

As such, the court found that the child constituted the grounds of a particular social group because of his perceived status as a ‘black child’. As Kneebone comments:

The human rights framework was also emphasised by the High Court in Chen Shi Hai v Minister for Immigration (2000) in which it was decided that a ‘black child’ born to a couple contrary to China’s one child policy, who was denied basic rights to education, food and health, was a member of a ‘social group’.[57]

Thus before the section 91R amendment, the Australian courts appropriately applied a broad understanding of the particular social group ground. Such a broad interpretation meant that those who would face persecution upon return would be protected by Australia even if they do not fit neatly into the other four categories. Such an interpretation is in line with the UNHCR Handbook and understands the historical developments of the conventions to appropriately apply the Refugees Convention to modern issues. However, there is a fear that since the introduction of section 91R, courts may be less free in their interpretation of persecution and the particular social group ground.

IV     Migration Legislation Amendment Act (No 6) 2001 (Cth)

Section 91R was amended into the Migration Act through the Migration Legislation Amendment Act (No 6) 2001 (Cth).[58] This amendment was introduce by the Howard Government in the wake of the Tampa crisis, as will be discussed below. Section 91R states that:

(1)       For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct. [59]

This amendment to the Migration Act was added in order to assert control over the Courts so as to ensure that a narrow interpretation of the Refugees Convention was used in the Australian system – what the Australian Government considered the proper interpretation of the Convention. As the Explanatory Memorandum[60] explains, the purpose of the Act is to:

restore the application of the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (“the Refugees Convention”) in Australia to its proper interpretation.

The essential and significant reason requirement of section 91R(1)(a) ‘reinforces the fact that there is a strong causal connection or nexus between the harm caused to the applicant and one or more of the five Convention grounds.’[61] However, it is the serious harm component of the amendment that plays the most significant role:

The key aspect of these qualifying provisions is the notion of serious harm. ‘Serious harm’ is the threshold that must be reached by a person before he or she is deemed entitled to the protection of another state. It is the degree of suffering to which a person must endure before the collective sympathy gland of other nations is sufficiently touched to admit that person into the community as a refugee.[62]

The amendment includes a ‘non exhaustive’ list of what would constitute serious harm under this amendment:

(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.[63]

This provides a high level of harm for one to qualify as a refugee under these standards. Many argue that the Section 91R actually distorts the interpretation of the Refugee Convention.[64] This is especially clear when an analysis of the political context is provided.

A     Tampa Crisis – The Context of 91R

The Migration Legislation Amendment Act (No 6) 2001 (Cth) was not created in a vacuum, but evolved out of the political context of the time. Thus it is important to analyse the political dimensions that aided in the introduction of section 91R. This era is part of a tightening of refugee protection from the Howard Government that aimed to further control and restrict refugee applications. The catalyst for these sweeping changes was the Tampa incident, as Sasha Lowes explains:

On 26 August 2001, 433 asylum seekers were rescued from their sinking boat by the Norwegian freighter ship the MV Tampa. The Tampa was bound for the Australian territory of Christmas Island when Australian authorities directed the ship’s captain to keep out of Australian waters and to take his passengers back to Indonesia. The captain defied that direction on various grounds including the medical condition of some of the asylum seekers on board his vessel. In response, the Australian authorities closed the port at Christmas Island and sent Special Air Services (SAS) troops to board the ship and prevent the asylum seekers from setting foot on Australian soil. Following a five-day ‘stand-off’, the crisis was resolved when agreements were reached with the governments of New Zealand and Nauru for the people aboard the Tampa to be conveyed to, and to have their protection claims assessed in, those countries.

Following the Tampa incident, the Australian government enacted six pieces of legislation, [65] in order to ‘create a secondary tier of Refugee Status Determination procedures which were intended to operate outside the domestic rule of law.’[66] As such, these RSDs provided a narrower process than available to those on mainland Australia, thus providing asylum seekers less rights to apply for asylum. As Alice Edwards points out:

In response to the Tampa incident, the Australian Government introduced successive amendments to its Migration Act 1958 (Cth), making it increasingly difficult for asylum-seekers to reach its territory, and resulting in reduced rights and worsening standards of treatment for asylum-seekers and refugees who do arrive. Combined with its already draconian policy of mandatory and non-reviewable detention, Australia now has one of the most hostile asylum regimes among industrialised countries.[67]

These legislations were part of the widely condemned ‘Pacific Solution’, and include the Migration Legislation Amendment Act (No 6) 2001 (Cth) that amended section 91R into the Migration Act. As Tara Magner points out, the ‘Pacific Solution was a hotly debated issue in the fall 2001 election period, with Prime Minister Howard ultimately riding an anti-refugee wave to re-election.’[68] Many commentators have pointed to Howards strong anti-refugee stance as a key influence on him winning re-election. As Howard passionately stated, the Australian Government ‘will decide who comes to this country and the circumstances in which they come.’[69]

It is clear that the Howard Government was intending to limit refugee protection in Australia and further control who receives protection under Australian law. As such, the Migration Legislation Amendment Act (No 6) 2001 (Cth) needs to be seen under this light. The Amendment Act was never intended to provide additional support or protection to those seeking refuge in Australia. On the contrary, the Amendment Act was part of a sweeping change to the Migration Act that made the refugee processin Australia significantly more difficult, especially for those arriving by boat. From this perspective, it is obvious why to Government of the day introduced such an amendment. As such, there has been a significant difference in the way the Australian courts have been forced to apply the Refugees Convention in light of the new serious harm requirements.

B     The Impact of the ‘Serious Harm’ requirement in Australian RSD

The serious harm test as introduced by 91R adds a further test to the Refugees Convention not found in the originally document. As such, this provides an additional step for Australian courts to make before granting someone with a protection visa. While many cases have found for a conformity between the Refugees Convention as interpreted through the above mentioned cases and the new statutory interpretation, there is still other cases which focus solely on the new statutory requirements. As Susan Kneebone points out:

There is uncertainty as to the interrelationship between s 91R and the Refugee Convention. In some cases the judges have confirmed that the Refugee Convention applies ‘without limiting’ the statute (SAAO v Minister for Immigration, 2002). In others judges have queried whether s 91R limits the Refugee Convention (SBBG v Minister for Immigration, 2003). In yet others the judges have suggested that it does (WADP v Minister for Immigration, 2002) but in others that the two are consistent (VBB v Minister for Immigration, 2003; SCAT v Minister for Immigration, 2003, per Madgwick and Conti JJ).

As such, the new statutory requirements provide unneeded confusion in regards to applying the appropriate interpretation of persecution. While in some cases, the Court has continued to interpret persecution in light of precedence from Chen Shi Hai v Minister for Immigration (and thus in light of human rights), still others cases have ignored the human rights interpretation of persecution an have focused solely upon the meaning of ‘serious harm’ as set out in 91R. As Kneebone points out:

These amendments will potentially lead to Australian jurisprudence being out of line with international interpretation of the Convention. Currently the Australian courts are interpreting the Convention in a moderate, not generous way. These amendments are simply unnecessary. They will add another layer of complexity to interpretation of Art 1A. [Next], one can query whether many of these provisions comply with the principle of ‘good faith’ interpretation of international obligations as required by Art 31 of the Vienna Convention.[70]

The case of SBBA v Minister for Immigration and Multicultural and Indigenous Affairs is an example of where the human rights interpretation and a broader use of the Refugees Convention was ignored for the statutory requirement. The case involved an Iranian national who feared persecution on account of being of the Sabean Mandean religion.[71] However, the Refugee Review Tribunal (RRT) found that treatment of Sabean Mandeans in Iran did not amount to persecution as set forth in 91R:

The Tribunal accepted that adherents of the Sabean Mandean religion are discriminated against in many ways, including ‘in the way in which the legal system operates’ but pointed out that not all discrimination amounts to persecution for the purposes of the Convention. The Tribunal referred to s91R of the Migration Act which provides that Art1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution unless it, inter alia, involves ‘serious harm’ to the relevant person. S91R(2) lists six instances of serious harm but states that this does not limit the concept for the purpose of the section. The Tribunal correctly directed itself in its analysis of the concept of persecution and the effect of s91R. It concluded that it was unable to accept, on the evidence before it, that… if the Applicant and his wife and their three children return to Iran now or in the reasonably foreseeable future, there is a real chance that they will suffer discrimination… as a result of the way the legal system operates amounting to serious harm for the purposes of subs91R(1).

While the Iranian national appealed the decision, the Court found that the RRT’s decision was not in error, and thus the Iranian did not qualify as a refugee. This case shows how the addition of 91R removes the previous precedent of applying the Refugee Convention in light of human rights standards. As Kneebone points out, ‘the court relied heavily on the text of s 91R without reference to the human rights context.’[72] As such, the addition of 91R limits the definition of persecution within the Refugees Convention. As shown above, this is clearly the intended outcome of such an amendment, as it severely restricts the definition of persecution thus limiting those who receive protection. However, there are those who argue that this limitation is indeed a positive step in Australian law.

V     91R as a Breach of the Refugees Convention

Dimopoulos and Bagaric argue that the limitation provided by section 91R is a positive step to ‘ensure, as far as possible, that refugee places are occupied by those in greatest need.’[73] They argue that because there are such great numbers of refugees world wide – over 14,900,000, and only so many countries resettling refugees, the Refugee Convention should be narrowed so that only those with the greatest need are resettled in Australia.[74] However, such an argument clearly lacks any knowledge of the refugee experience. How can one realistically define who constitutes as in the ‘greatest need’? Surely any grave form of persecution deserves protection and one cannot define which form of persecution is of greater need than another. While it is obvious that the refugee crisis worldwide is greatly over numbered, the solution shouldn’t be to amend the Refugees Convention. The Refugees Convention should not be used as a tool to control migration, but as a tool to protect all those who fear persecution. If Dimopoulos and Bagaric are truly concerned about the massive numbers of refugees worldwide they should be arguing for greater resettlement programs across the world, not for a change of interpretation of the Convention. However, their support of the Migration Legislation Amendment Act (No 6) 2001 (Cth) clearly shows that this act was intended as a tool to limit the refugee convention and thus restrict who qualifies for protection.

Therefore, section 91R is indeed a breach of the Refugees Convention. Australia has an obligation to assess and provide protection to those who meet the definition of a refugee. Australia should not be seeking to bypass this obligation by simply restricting the definition to those who face serious harm. In addition, such a test is a moral black hole, which requires those who have never experienced persecution before to assess what is an unimaginable experience. Clearly those who experience any form of persecution should constitute serious harm. However, by defining serious harm so narrowly Australia risks denying protection to those who would have otherwise qualified as a refugee in the ordinary meaning of the Refugees Convention.

VI     Conclusion

In conclusion, section 91R of the Migration Act 1958 (Cth), as amended by the Migration Legislation Amendment Act (No 6) 2001 (Cth) limits the Convention Relating to the Status of Refugees 1951, as amended by Protocol Relating to the Status of Refugees 1967. As indicated from the preamble, the Refugees Convention should be read in light of international human rights law, including the International Bill of Rights. Such an interpretation ensures that those fleeing a wide variety of persecutions are given protection by contracting states. This interpretation was also reflected in Australian case law, in which human rights violations were interpreted to constitute persecution under the convention. However, section 91Rof the Migration Act redefines such in interpretation of persecution to require only serious harm. While it is generally accepted that persecution already was interpreted as serious harm, the amendment defines serious harm very narrowly, so as to only include severe forms of persecution. Such an interpretation limits the Refugees Convention, thus denying protection to those who are owned protection under the Refugee Convention. This an amendment was not a mistake, but was intentionally defined in such a way by the Howard Government to limit Australia’s protection obligations. As such, section 91R places Australia at odds with the original intention of the Refugees Convention and thus provides grounds for the critique that Australia breaches international law. If Australia intends to honour its obligation under the Refugees Convention it should seek to remove section 91R from the Migration Act and allow the Courts to continue to define persecution in regards to human rights violations.

[1] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

[2] Convention Relating to the Status of Refugees 1951, art 1.

[3] Convention Relating to the Status of Refugees 1951, art 33.

[4] Mary Crock, Immigration and refugee law in Australia (Federation Press, 1998) 126.

[5] Alex De Costa, ‘Assessing the Cause and Effect of Persecution in Australian Refugee Law: Sarrazola, Khawar and the Migration Legislation Amendment Act (No. 6) 2001 (CTH)’ (2002) 30 Federal Law Review 536.

[6] Guy S. Goodwin-Gill, ‘Entry and Exclusion of Refugees: The Obligations of States and the Protection Function of the Office of the United Nations High Commissioner for Refugees’ (1982) 3 Michigan Yearbook of International Legal Studies 291-298.

[7] UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’, UNHCR, 1992, [51].

[8] Peter Butt, Butterworths concise Australian legal dictionary (LexisNexis Butterworths, 3rd ed, 2004).

[9] Matthew E. Price, Rethinking Asylum (Cambridge University Press, 2009) 107.

[10] Susan Kneebone, ‘What we have done with the refugee convention: The Australian way’ (2005) 22(2) Law in Context 83–119, 105.

[11] James Hathaway, The Law of Refugee Status (Butterworths, 1993) 102.

[12] Migration Legislation Amendment Bill (No. 6) 2001 (Cth).

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

[14] Ibid, art 31(1).

[15] Ibid, art 32.

[16] Hathaway, ‘The Law of Refugee Status’, above n 11, 103.

[17] Penny Dimopoulos & Mirko Bagaric, ‘The Shifting Meaning of Persecution in Australian Refugee Law: How Much Must One Suffer to be Deserving of Asylum?’ (2003) 15(2) Bond Law Review 316.

[18] Ibid.

[19] Convention Relating to the Status of Refugees 1951, preamble.

[20] Hathaway, ‘The Law of Refugee Status’, above n 11, 105.

[21] Goodwin-Gill, ‘Entry and Exclusion of Refugees’, above n 6, 298.

[22] UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’, above n 7, [51].

[23] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)

[24] International Covenant on Civil and Political Rights, opened for signature 19December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[25] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 November 1976).

[26] Hathaway, ‘The Law of Refugee Status’, above n 11, 108.

[27] Ibid 109.

[28] Ibid 109–110.

[29] Ibid 107.

[30] Convention Relating to the Status of Refugees 1951, art 1(A)(2).

[31] Penny Dimopoulos, ‘Membership of a Particular Social Group: An Appropriate Basis for Eligibility for Refugee Status’ (2002) 7 Deakin L. Rev. 367, 370.

[32] Convention Relating to the Status of Refugees 1951, art 1.

[33] UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’, above n 7, [66].

[34] Dimopoulos, ‘Membership of a Particular Social Group’, above n 31, 371.

[35] Ibid 371.

[36] Ibid 371.

[37] Goodwin-Gill, ‘Entry and Exclusion of Refugees’, above n 6, 291–7.

[38] Arthur Helton, ‘Persecution on account of membership in a social group as a basis for refugee status.’ (1983) 15(1) Columbia human rights law review 39.

[39] Convention Relating to the Status of Refugees 1951.

[40] Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 286–7.

[41] Mabo v Queensland (No 2) (1992) 175 CLR 42.

[42] Migration Act 1958 (Cth).

[43] Migration Act 1958 (Cth), s 36(2)(a).

[44] Kneebone, ‘What we have done with the refugee convention’, above n 10, 92; Fiona McKenzie, ‘What have we done with the refugee convention?’ (1996) 70(10) Australian law journal 820.

[45] Migration Act 1958 (Cth), s 36(2)(a).

[46] Kneebone, ‘What we have done with the refugee convention’, above n 10, 93.

[47] Dimopoulos and Bagaric, ‘The Shifting Meaning of Persecution in Australian Refugee Law’, above n 17, 319.

[48] Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 388.

[49] Ibid 430.

[50] Ibid 431.

[51] Minister for Immigration and Multicultural Affairs Respondent v Haji Ibrahim 204 CLR 1, [65].

[52] Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 [15].

[53] Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another 190 CLR 258.

[54] Dimopoulos and Bagaric, ‘The Shifting Meaning of Persecution in Australian Refugee Law’, above n 17, 322.

[55] Chen Shi Hai v The Minister for Immigration and Multicultural Affairs [2000] HCA 19.

[56] Chen Shi Hai v The Minister for Immigration and Multicultural Affairs [2000] HCA 19 [6].

[57] Kneebone, ‘What we have done with the refugee convention’, above n 10, 106.

[58] Migration Legislation Amendment Act (No. 6) 2001 (Cth).

[59] Migration Act 1958 (Cth), s 91(1).

[60] Migration Legislation Amendment Bill (No. 6) 2001 (Cth).

[61] Dimopoulos and Bagaric, ‘The Shifting Meaning of Persecution in Australian Refugee Law’, above n 17, 317.

[62] Ibid 318.

[63] Migration Act 1958 (Cth), s 91(2).

[64] Kneebone, ‘What we have done with the refugee convention’, above n 10, 105; referencing De Costa, ‘Assessing the Cause and Effect of Persecution in Australian Refugee Law’, above n 5, 537.

[65] See Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Migration Legislation Amendment Act (No 1) 2001 (Cth); Migration Legislation Amendment Act (No 5) 2001 (Cth); and Migration Legislation Amendment Act (No 6) 2001 (Cth).

[66] Sasha Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims: The Judgment of the High Court of Australia in the “Malaysian Solution” Case’ (2012) 12(1) Human Rights Law Review 170.

[67] Alice Edwards, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15(2) International journal of refugee law 193.

[68] Tara Magner, ‘A Less than Pacific Solution for Asylum Seekers in Australia’ (2004) 16(1) International journal of refugee law 60.

[69] Malcolm Mackerras, ‘“Stop the boats” contest tipped’, Canberra Times, 3 November 2011 <http://www.canberratimes.com.au/opinion/editorial/stop-the-boats-contest-tipped-20111103-1v19y.html&gt;.

[70] Susan Kneebone, Inquiry into the Migration Legislation Amendment Bill (No 6) 2001, Castan Centre for Human Rights, 2001, < http://www.law.monash.edu.au/castancentre/publications/migration6.html&gt;.

[71] SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90

[72] Kneebone, ‘What we have done with the refugee convention’, above n 10, 109.

[73] Dimopoulos and Bagaric, ‘The Shifting Meaning of Persecution in Australian Refugee Law’, above n 17, 328.

[74] Ibid.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s