The protection of the rights of asylum seekers: a comparative analysis of domestic bills of rights

I     Introduction

A domestic bill of rights is often upheld as a vital tool in protecting the rights of citizens. However, a bill of rights also plays an important role in protecting the rights of those seeking asylum. This essay will analyse how a domestic bill of rights protects the rights of asylum seekers in a comparative study between the European Union, the United Kingdom, Canada and Australia. Through this analysis, it will be shown that a domestic bill of rights is vital to ensure the rights of all people, including asylum seekers, are upheld.

Firstly, the International Bill of Rights will be provided in order to set a standard for comparison. Secondly, the European Convention on Human Rights will be analysed, with specific focus on the UK. Third, the UK Human Rights Act will be assessed, with relevant case law. Forth, the Canadian Charter of Fundamental Rights and Freedoms will be analysed. Finally, the case of Australia will be provided to compare how a country that does not have a domestic bill of rights protects the rights of asylum seekers.

II     International Standards of the Rights of Asylum Seekers

While there are a variety of protection mechanisms – regional, domestic and international – offered to asylum seekers throughout the world, there are a number of core rights that are particular relevant to those seeking safety. In order to analyse and compare various domestic bills of rights and their protective mechanisms, it is important to first establish an international benchmark for which to compare these domestic protections against. The international standard that will be used is the International Bill of Rights and its various subsequent treaties.

The International Bill of Rights is the term given to the Universal Declaration of Human Rights (‘UDHR’)[1] and the subsequent international treaties that followed from it. However, it is important to note that the UDHR is not a binding treaty, and is what is known as soft law.[2] Nevertheless, the subsequent treaties that complete the International Bill of Rights, namely the International Convention of Civil and Political Rights (‘ICCPR’)[3] and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)[4] are indeed binding and create obligations upon States.

Furthermore, additional conventions, including the Convention Relating to the Status of Refugees (‘Refugees Convention’)[5], and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’)[6], among others, provide a complete analysis of the rights of asylum seekers.

The rights used to compare the various domestic bills of rights will include the ‘right to seek asylum’, the ‘right against refoulement’, the ‘right against arbitrary detention’ and ‘the right against inhumane treatment.’ While there are indeed many other rights that ought to be provided to those seeking asylum, they are outside the scope of this paper. The following will analyse these core rights thus setting forth a standard in which to compare domestic bills of rights.

A     The Right to Seek Asylum

The right to seek asylum is first outlined in the Universal Declaration, in which Article 14 states that ‘everyone has the right to seek and to enjoy in other countries asylum from persecution.’[7] However, this right is often referred to as empty right, as it does not create a subsequent duty upon States to grant asylum.[8] Nevertheless, while States may not have a duty to grant asylum, they at least have an obligation to assess asylum applications. As Edwards points out, ‘although there is no right to be “granted” asylum de jure, there may exist an implied right to asylum de facto, or, at the very least, a right to apply for it.’[9] This is further established in the Refugees Convention[10] and CAT,[11] in which States Parties are obligated to not return someone to a country where they would face persecution or torture. As Kneebone points out, ‘States have a duty under international law to not obstruct the right to seek asylum.’[12]

B     The Right not to be Refouled

As discussed above, the right not to be refouled is contained in a number of international human rights treaties. The key right is contained within the Refugees Convention, which states that no ‘State shall expel or return (‘refouler’) a refugee in any many whatsoever to the frontiers of territories where his life or freedom would be threatened.’[13] States thus have an obligation to assess an asylum seekers refugee claim, and not refouler an individual if they indeed meet the criteria as a refugee.[14]

Furthermore, the right not to be refouled is also contained in CAT, which provides a broader protection against refoulement ‘to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’[15] This obligation is an extension of the obligations created under the ICCPR, which prohibit torture or cruel, inhuman or degrading treatment.[16] As such, even if an asylum seeker fails the criteria for refugee status, they still may not be returned to a territory where they would be in danger of being tortured.

C     The Right against Arbitrary Detention

While the right against arbitrary detention is not specifically unique for asylum seekers, it is important to analyse because of the situations many asylum seekers find themselves in around the world. The increasing trend of securitisation by western nations in an effort to control migration[17] has led to the increase in the number of asylum seekers being detained in detention centres, processing centres, prisons and the like.[18]

The right against arbitrary detention is firstly outlined in Article 9 of the UDHR that states that ‘no one shall be subjected to arbitrary arrest, detention or exile.’[19] This is further elaborated through Article 9 of the ICCPR, which mirrors the words of the UDHR.[20] While neither of these documents contains the definition of the word arbitrary, the Human Rights Committee has outlined the definition of arbitrary in a number of relevant cases.

In the communication of A v Australia, The Committee found that Australia had breached its human rights obligations under Article 9 of the ICCPR. In particular, the Committeefound that the detention was arbitrarybecause Australia failed to provide adequate review of the necessity of detention, in accordance with Article 9(4) of the ICCPR:[21]

Every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification…Without such factors detention may be considered arbitrary.[22]

Furthermore, In the communication of C v Australia, the United Nations Human Rights Committee held that an Iranian national who had been detained for two years was subjected to arbitrary detention under Article 9 of the ICCPR, because the ongoing detention lacked justification.[23] In defining the meaning of arbitrary, the Committee found that

whatever the reasons for the original detention, continuance of immigration detention for over two years without individual justification and without any chance of substantive judicial review was, in the Committee’s view, arbitrary.[24]

Finally, in the communication of Alphen v The Netherlands, the Committee found that:

The drafting history of Article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability… Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.[25]

Thus, the use of detention must be necessary, based upon the individual needs,[26] and open to continual review to ensure it is appropriate and proportionate.

D     The Right against Torture, Inhumane and Degrading Treatment

Asylum seekers are often at risk of inhuman or degrading treatment, because of their irregular legal status they are in within many countries. Degrading and inhumane treatment can occur either in detention or because of the limitations and restriction placed upon them while under the jurisdiction of the State. As such, the right against inhumane treatment is also a vital right to analyse in the context of the rights of asylum seekers.

Article 7 of the ICCPR states that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’[27] Furthermore, the Convention against Torture also contains provisions against inhumane treatment in Article 16:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment…when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[28]

Asylum seekers may experience torture, inhumane or degrading treatment throughout the asylum process. This can include the use of prolonged detention, which may cause severe mental health issues,[29] as the Human Rights Committee established in A v Australia:

The continued detention of the author when the State party was aware of the author’s mental condition and failed to take the steps necessary to ameliorate the author’s mental deterioration constituted a violation of his rights under Article 7 of the Covenant.[30]

As such, asylum seekers have a right to be treated humanely and to be free from torture or degrading treatment throughout their asylum process, including whilst in detention and whenever they are under the jurisdiction of the State.

Thus it is clear that asylum seekers have a number of significant rights that are owned to them by the State under international human rights law. These rights have established a standard in which to compare the following countries in an assessment of how a domestic bill of rights protects the rights of asylum seekers.

III     United Kingdom

The UK is signatory to all main international human rights instruments outlined above. As such, it has committed to establishing, at minimum, these rights in domestic law. Furthermore, the United Kingdom is, as condition upon EU membership, part of the European Convention on Human Rights (‘ECHR’),[31] as well as bound by EU law and the decisions of the European Court of Justice. In order to adequately assess the role of the UK Human Right Act, an analysis of these European protection mechanisms is important.

A     The ECHR and Asylum Seekers

The UK has obligations under the ECHR that reinforce the rights of asylum seekers. These obligations include the prohibition against torture,[32]the right to liberty and security,[33] the right to a fair trial,[34] and the right to an effective remedy.[35]

In regards to arbitrary detention, while Article 5 prescribes the right to liberty and security, Article 5(1)(f) does permit the “lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”[36] However, such an action must be in accordance with law and subject to judicial proceedings.[37] As Costello argues:

The requirement of legality, as is commonly the case under the ECHR, refers not only to conformity with enacted domestic law, but also entails rule of law criteria, particularly relating to the accessibility, precision, and foreseeability of the standards and procedures governing detention. On occasion, the requirement of legality encompasses more general concerns relating to detention conditions, such as when detention of vulnerable individuals or children is at issue.[38]

The leading case regarding detention under the ECHR is the case of Chahal v UK,[39] before the introduction of the UK Human Rights Act. The Court made two important findings in relation to the rights of asylum seekers. Firstly, the Court upheld the principle of non-refoulement through their interpretation of Article 3 of the ECHR:

Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence.  However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.[40]

Second, while upholding the rights of asylum seekers against refoulement, the Court stated in Chahal that Article 5(1)(f) ‘does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing.’[41] Thus the Court found that the only requirement for detention was that the individual face deportation. The Court asserted that detention was only lawful as long as deportation proceedings were in progress and prosecuted with ‘due diligence.’[42] Thus the Court held that detention while the asylum claim was still being assessed fell under Article 5(1)(f).[43]

Thus detention, for the purpose of deportation, is permitted under the ECHR. However, deportation must be a realistic prospect and deportation must occur as soon as possible. ‘If removal is not feasible due to the absence of travel documents, for example, detention will not be justified.’[44]

This is further outlined in the case of A and Others v The United Kingdom,[45]wherethe court found that if removal was not possible, for example because of a risk of human rights violations upon return, detention should not be used:

Any deprivation of liberty under the second limb of Article 5(1)(f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5(1)(f)… Article 5(1) requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness…To avoid being branded as arbitrary, detention under Article 5(1)(f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued.[46]

Furthermore, the applicants submitted that the prolonged detention had caused an Article 3 violation of inhumane treatment. However, the court rejected this claim arguing that because detention was not indefinite, it did not amount to an Article 3 violation. As Shah points out:

The detention did not per se give rise to the level of suffering that would trigger the application of Article 3…The ECtHR appeared to simply state that as this was not indefinite detention there could not be an Article 3 issue. However, what the ECtHR did not do was consider the level of suffering faced by each of the applicants by virtue of being trapped in the ATCSA regime.[47]

As such, prolonged detention does not seem to bring forth a violation of Article 3, so long as it is not indefinite. However, this decision seems at odds with international human rights law, as discussed above, such as the case of A v Australia.[48]

Another notable case is Saadi v. UK,[49] in which the court found that the detention of an asylum seeker for seven days did not breach Article 5(1)(f).[50] While the majority followed the precedent of Chahal, a dissenting opinion argued that

asylum seekers who have presented a claim for international protection are ipso facto lawfully within the territory of a State, in particular for the purposes of Article 12 of the International Covenant on Civil and Political Rights (liberty of movement) and the case-law of the Human Rights Committee, according to which a person who has duly presented an application for asylum is considered to be “lawfully within the territory”.

Therefore, under the ECHR, a number of rights are protected. Firstly, while detention of asylum seekers is permitted for the purpose of removal, it should not be arbitrary and should be necessary for the purpose. This seems to be in line with international standards established above. Second, non-refoulement is upheld to a strong degree through Article 3 of the ECHR.

However, the right against inhumane treatment seems limited, as the Court found that prolonged detention does not amount to inhumane treatment as long as it is not indefinite. This is at odds with the United Nations Human Rights Committee finding that prolonged detention may cause inhumane treatment, even if it is not indefinite.[51]

B     EU Law and Asylum Seekers

The UK, as a member of the European Union, is also subject to EU Law. The EU legislation governing immigration detention takes the form of directives.[52] The Court of Justice of the European Union (‘CJEU’) is the main court of EU law. There is a significant body of EU law governing immigration detention, in particular, the detention of asylum seekers under the Procedures Directive (PD)[53] and Reception Conditions Directive (RCD)[54] and of those facing deportation under the Returns Directive (RD).[55]

Furthermore, the Charter of Fundamental Right of the European Union[56] provides additional recognition of the rights of asylum. In particular, Article 4 prescribes the prohibition of torture, inhuman or degrading treatment, Article 6 the right to liberty, Article 18 the right to asylum and Article 19 the protection against expulsion or removal. Since the Treaty of Lisbon,[57] the Charter of Fundamental Rights has become a legally binding instrument of primary EU law.[58] As such, whenever the UK is implementing EU law, they are also bound to uphold the rights found within this Charter.

C     UK Human Rights Act

Since 1998, the UK Human Rights Act[59] has become the main focus of human rights law, in an effort to ‘bring human rights home.’[60] Essentially, the UK Human Rights Act was envisioned to implement the ECHR into UK’s domestic legislation in order to stem the tide of complaints to the ECtHR. As such, the UK Human Rights Act does not establish any new rights itself but incorporates most of the ECHR. As set out in the Act, the purpose of the act is to ‘give further effect to rights and freedoms guaranteed under the European Convention on Human Rights.’[61]

In relation to the rights of asylum seekers, Article 3, the ‘prohibition against torture’,[62]and Article 5, ‘the right to liberty and security’[63] are the key rights that will be assessed in an analysis on this bill of rights. In addition, the UK Human Rights Act also provides that ‘so far as it is possible to do so’, legislation ‘must be read and given effect in a way which is compatible [ECHR] Convention rights,[64] as well as requiring public authorities to act in conformity with these rights.[65]

However, there are a number of limitations to the UK Human Rights Act. Firstly,is not constitutionally entrenched, and thus can be amended by Parliament or repealed.[66] Second, when another statute is incompatible with the Act, it is not automatically invalid, but rather a ‘declaration of incompatibility’ is made.[67] This declaration contains no obligation for the legislature to amend the incompatible act.[68]

1      The Right to Seek Asylum

The UK is party to the Refugees Convention and its Protocol,[69] however, according the UK law, international law must be incorporated through the legislature. Nevertheless, the UK has explicitly mentioned the Refugees Convention in domestic law, including the UK Immigration Rules.[70] Furthermore, as a member of the EU, it is also bound to respect the rights of asylum seekers whenever implementing EU law.[71]

In general, the UK provides adequate assessment to asylum seeker claiming refugee status, based upon EU standards.[72] Such determination processes have improved since the 1990s.[73] The process contains strong oversight mechanisms including an appeals process.[74] Asylum claims are split into three distinct applications: an “asylum claim” under the Refugees Convention; a claim for “humanitarian protection” under complimentary protection principles and/or a “human rights” claim under the ECHR/Human Rights Act.[75] Asylum seekers may claim more than one aspect, the claims are processed at the same time, and additional claims may be considered even if not originally requested.

Once an asylum seeker is found to be in need of protection, they are given a five year temporary residence permit, which can be converted to a permanent residency upon expiration.[76] However, one controversial aspect of the status process is the concept of a ‘safe third country’, which requires that asylum seekers be detained via an accelerated procedure. This policy denies asylum seekers an appeal within the UK if they have come from or passed through one of the ‘safe countries’ on the list.[77] The concept of ‘safe country’ is not founded in the Refugees Convention nor under international human rights, yet is found within the EU procedures directive and originates from European state practice.[78]

One important that must be mentioned in regards to the right to seek asylum is the case of R v Immigration Officer at Prague Airport,[79] in which the UK Government attempted to stop a group of Czech Roma reaching UK territory in order to apply for asylum. The House of Lords found that Article 33 of the Refugees Convention did not apply extraterritorially, and thus as the applicants had not yet left the Czech Republic, they were not refugees under the definition. However, this decision is contrary to many views of academics.[80] As such, the UK Government does, in some cases, impinge on the right to seek asylum, and the UK Human Rights Act does not protect people outside who are attempting to seek asylum outside of the UK jurisdiction.

2      The Right Against Refoulement

The right against refoulement is the right not to be returned to a State in which persecution (under the Refugees Convention) or torture (under CAT) would occur. The leading UK case regarding this right is the case of S and Others v Secretary of State for the Home Department.[81] This case involved a group of Afghan asylum seekers who had fled the Taliban in 2000 by hijacking a plane and landing at Stranstead airport in the UK. Their initial asylum claim was rejected, but upon appeal, the Asylum and Immigration Tribunal found that removal would breach their human rights under Article 3 of the ECHR. In response to this decision by the Court of Appeal, the government introduced the Criminal Justice and Immigration Act[82] to override this decision. Nevertheless, this example still shows the strength of the UK Human Rights Act in protecting the right against refoulement.

Furthermore, the case of Chahal, as already outlined above, has had a strong impact on the UK in dealing with people who they wish to deport yet who claim protection under Article 3. As Maria O’Sullivan points out:

The Chahal judgment therefore has the effect of preventing the UK from deporting those foreign nationals who are perceived by the UK as a threat to national security, where there is substantial grounds to show that that the applicant will be subjected to treatment in breach of Article 3. Thus, the UK Government has been very critical of the judgment in Chahal and has attempted to limit its effect.[83]

As such, there are strong mechanisms to protect the asylum seekers against refoulement. While there is a strong public outcry against these protective elements, the authority of the ECHR ensures the UK upholds these standards.

3      The Right to Liberty

The right to liberty, as discussed above, is particularly important issue when considering the rights of asylum seekers. In particular, many asylum seekers are detained upon arrival in the UK for both the purpose of assessment or deportation. As discussed above briefly (regarding the ECtHR decision), one leading case in regards to the right to life is the case of Saadi v Secretary of State for the Home Department.[84] The applicants challenged their seven-day detention as a breach of Article 5 of the ECHR. However, the court found that the detention was lawful, arguing that there was no arbitrariness in the system:

I do not see that either the method of selection of these cases (are they suitable for speedy decision) or the objective (speedy decision) or the way in which people are held for a short period (ie short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate.[85]

As such, in regards to the prohibition of arbitrary detention under the ICCPR and the right to liberty outlined in the ECHR, detention is still permitted under UK law if it is for a short period of time and reasonable in its conditions. Such a short detention period, while perhaps unnecessary, is quiet contrary to other jurisdictions such as Australia, which detain asylum seekers indefinitely.

4      The Right against torture, inhuman or degrading treatment.

While the right against torture, inhumane and degrading treatment has already been discussed above in terms of refoulement, it is also worth considering how these rights are protected while the asylum seekers remain in UK jurisdiction. One particular important case that considered the right against inhuman and degrading treatment is the case of R (on application of Q and others) v Secretary of State for the Home Department.[86] In this case, a number of asylum seekers were denied support under Section 55 of the Nationality, Immigration and Asylum Act.[87] The UK Court of Appeal held that the imposition by the legislature of a regime which prohibited asylum seekers from working and from receiving support may in some circumstances breach that individual’s right not to be subjected to inhumane or degrading treatment under Article 3 of the ECHR.[88] As such, the protection against inhumane treatment is protected through the Act and the ECHR.

Thus the UK Human Rights Acts protects the rights of asylum seekers through a number of ways. This Act is further strengthened by the role of the EU and the influence of the ECHR. Together, the UK provides adequate protection in many ways of the rights of asylum seekers.

IV     Canada

Canada is also party to the key International Bill of Rights and the various treaties mentioned above. However, because of the lack of regional agreements, such as in Europe, there are limited oversight mechanisms, except through the various UN bodies. Nevertheless, Canada contains strong human rights protections within its constitution, as established through the Constitution Act 1982.[89] The Constitution Act 1982 enshrined into the Constitution of Canada the Canadian Charter of Rights and Freedoms. The Canadian Charter of Rights and Freedoms, in many ways, replaces the Canadian Bill of Rights, which is an unentrenched statute that many have considered ineffective.[90]

The Canadian Charter of Rights and Freedoms contains many simular rights to the ones already analysed in other jurisdictions. Of particular relevance to this analysis are; Section 7, which sets out the right to life, liberty and security; Section 9, which establishes the right not to be arbitrarily detained and Section 12 that establishes the right to not to be subjected to any cruel and unusual treatment. As above, an analysis of the key rights will be provided in order to assess the effectiveness of the Canadian Charter of Rights and Freedoms in protecting the rights of asylum seekers.

A     The Right to Apply for Asylum and the Right against Refoulement

Canada provides a comprehensive system of asylum procedures. Much like the UK system, protection extends to three criteria; a person determined to be a refugee under the Refugees Convention; a person who faces substantial risk of torture within the meaning of Article 1 of the Convention Against Torture; and a person who ‘faces a risk to life, or of cruel and unusual treatment, or who risks punishment that is not faced generally by other individuals in that country’.[91]

While a person may lodge a refugee claim upon arrival via land, air or sea, Canada – like many other countries – imposes entry visa requirements on most refugee producing countries, effectively denying anyone who is a likely to apply for asylum upon arrival.[92] Nevertheless, upon arrival – with or without a visa – a government official, determines within three days the asylum seeker’s eligibility for referral to the Refugee Protection Division.[93] The Refugee Protection Division is an independent body established as a response to Singh v Canada (Minister of Employment and Immigration).[94]

1      Singh v Canada (Minister of Employment and Immigration)

Singh v Canada was one of the first cases to be decided under the Canadian Charter of Rights and Freedoms.[95] As Macklin argues

The current refugee determination system inCanada owes its origin to the 1985 landmark decision of Justice Wilson in Singh. Prior to Singh, it was possible for an asylum seeker’s claim to be rejected without an opportunity to appear in person before the decision maker or to see all the evidence relied upon by the decision maker.

The Court relied upon Section 7 of the Charter, which establishes that ‘everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’[96] In her finding, Wilson J argued that:

I cannot, however, accept the submission of counsel for the Minister that the denial of the rights possessed by a Convention refugee under the Act does not constitute a deprivation of his security of the person. Like “liberty”, the phrase “security of the person” is capable of a broad range of meaning…I note particularly that a Convention refugee has the right under s. 55 of the Act no to “…be removed from Canada to a country where his life or freedom would be threatened…”. In my view, the denial of such a right must amount to a deprivation of security of the person within the meaning of s. 7.[97]

Thus, the Singh decision made the requirement for an oral hearing an indispensible feature of any subsequent refugee determination process.[98] As such, Singh shows the strength of the Charter in protecting the rights of seeking asylum.

Since 2000, 40 to 47 percent of these claims are given protection. Throughout this application process there are many review mechanisms in place, including judicial review before the Federal Court of Canada,[99] the Federal Court of Appeal, a Pre-Removal Risk Assessment and a final application for humanitarian and compassionate consideration.[100]

However, in July 2010, the Parliament passed the Balanced Refugee Reform Act.[101] The major changes implemented by this Act are the ‘safe country’ policy (see below) and to have public servants – rather than independent assessors appointed by the Governor – perform initial refugee status determination.[102] Refugee lawyers have strongly criticised these changes.[103]

While the asylum application process seems to comply with international standards, Canada has a similar policy to the UK regarding a ‘safe third country’. Such a policy establishes that if an asylum seeker has travelled through another safe third country they will be ineligible for application into Canada, and will be returned to that safe third country as outlined by the Safe Third Country Agreement.[104] However, the only country to be designated as a safe third country so far is the United States.[105]

B     Rights relating to Detention

Canada does not automatically detain all asylum seekers, but retains the choice to detain asylum seekers at its discretion. However, such a decision to detain asylum seekers faces a number of period reviews to ensure it does not become arbitrary, as established in Section 9 of the Charter of Fundamental Rights and Freedoms.[106] Under the Immigration and Refugee Protection Act,[107] the Canadian Border Services Agency has to bring the person before the Immigration Division of the Immigration Review Board within 48 hours (or as soon as possible afterwards) to have the reasons for the detention reviewed.[108] Should the decision-maker order that detention should continue, the next detention review is to be held within seven days and subsequent detention reviews occur every 30 days thereafter.[109] If it is found that detention is not needed, the person would be released, with or without conditions. Some conditions may include posting a security deposit or reporting on a regular basis.[110]

However, the Immigration and Refugee Protection Act[111] also allowed the Minister of Public Safety and Emergency Preparedness to issue certificates of inadmissibility (commonly referred to as ‘security certificates’) in respect of permanent residents and foreign nationals who are deemed to be a threat to national security.[112] The Act provided that a foreign national named in such a certificate must be detained, and may only apply for review until 120 days after a judge of the Canadian Federal Court determines that the security certificate issued against them is reasonable.

In addition, during the issuance of the certificate, review of detention and determination of the certificate’s reasonableness, the person named in the security certificate or their lawyer ‘has no right to see the material on the basis of which the certificate was issued. Non-sensitive material may be disclosed; sensitive or confidential material must not be disclosed if the government objects to it.'[113] However, this policy was challenged the case of Cahrkaoui.

1      Charkaoui v Canada

The leading case regarding this detention and the Canadian Charter of Rights and Freedoms is Charkaoui v Canada,[114] in which the Supreme Court of Canada overturned provisions of the Immigration and Refugee Protection Act 2001.[115] The case involved Mr Charkaoui, Mr Harkat and Mr Almrei who were living in Canada when they were arrested and detained under security certificates issued by the Minister of Public Safety. Mr Charkaoui was a permanent resident of Canada, while Mr Harkat and Mr Almrei were both foreign nationals. The evidence upon which the decisions to issue security certificates made by the Minister were partially secret, but the evidence suggested that they were a threat to national security by reason of their involvement in terrorist activities.

The Court found that the Immigration and Refugee Protection Act[116] relating to detention on national security grounds were contrary to a number of rights found within the Canadian Charter of Rights and Freedoms.

(a)  Right to life, liberty and security of the person

In regards to the rights found within Section 7 of the Charter,[117] the Court found that the Charter ‘requires that laws that interfere with life, liberty and security of the person’[118] must conform to the principles of fundamental justice, which required that ‘before the state can detain people for significant periods of time, it must accord them a fair judicial process.’[119] As such, the Court held that the procedures for determining whether a security certificate is reasonable, and the procedures for detention review, unjustifiably contravened s 7 of the Charter.

(b)  Right against arbitrary detention

The right against arbitrary detention is outlined in the Charter in Section 9.[120] While the Court rejected the argument that automatic detention of foreign nationals is arbitrary, it did find that

‘the lack of review for foreign nationals until 120 days after the reasonableness of the certificate has been judicially determined violates the guarantee against arbitrary detention in s 9 of the Charter, a guarantee which encompasses the right to prompt review of detention under s 10(c) of the Charter.’[121]

Thus the Court held that the fact that foreigners could not have their case reviewed until 120 after the decision was arbitrary, especially as permanent residence were able to have their case reviewed within 48 hours.

(c)   Right against cruel and unusual treatment

In regards to the rights against cruel and unusual treatment outlined in Section 12 of the Charter,[122] the Court found that extended periods of detention do not violate sections 7 and 12 of the Charter if that detention is ‘accompanied by a process that provides regular opportunities for review of detention’[123] and that review takes into account the reasons for detention, the length of detention, the reasons for delay in deportation and the availability of alternatives to detention.

Thus, the Court found that the extended period of detention pending deportation of the defendants did not violate sections 7 or 12 of the Charter, provided there is robust ongoing judicial review.

As such, the Charkaoui case highlighted a number of protections that are afforded to asylum seekers through the Charter. This is in stark contrast to the rights afforded to asylum seekers within Australia.

V     Australia

In order to assess the effectiveness of the above domestic bills of rights, it is important to analyse how a country that does not have a domestic bill of rights does or does not protect the rights of asylum seekers. While Australia is party to the International Bill of Rights and additional treaties, there is no national bill of rights. While the State of Victoria and the Australian Capitol Territory have their own statutory bills of rights, modelled off the UK version,[124] they do not in themselves address asylum seeker issues, as this is a national responsibility. As such, when it comes the protecting the rights of asylum seekers, Australia often fails, in part, because of the lack of a national bill of rights. The following will assess how Australia fairs in comparison to the above bills of rights through the already outlined rights – right to asylum, right against arbitrary detention, right against inhumane and degrading treatment and the right against refoulement.

A     The Right to Apply for Asylum

Australia does have a refugee status determination process currently in place that assesses asylum seekers who arrive by boat or by plane to Australian territory in regards to the Refugees Convention and the Convention against Torture. This involves an independent reviews process through the Refugee Review Tribunal, as well as subsequent appeals to the Federal Court and High Court, and a final ministerial discretion process. However from 2001 until 2007, and then again from 2012, Australia has sent asylum seekers who arrive by boat to offshore processing centres in Manus Island in Papua New Guinea and Nauru. Furthermore, a very recent policy change has meant that all asylum seekers who arrive by boat will be resettled in Papua New Guinea,[125] with no chance to come to Australia[126] This police has been heavily criticised by many legal experts who claim that it breaches Australia’s obligations under the Refugees Convention.[127] However, without a bill of rights, there are limited oversight mechanisms to assess such a policy against international human rights standards.

B     The Right against Arbitrary Detention

Australia is the only country to have a policy of mandatory detention for all asylum seekers, as outlined in the Migration Act.[128] Accordingly, all people who arrive in Australia without a visa are detained until they are removed from Australia or are granted a visa.[129] As outlined above, the communication to the United Nations Human Rights Commission of A v Australia found that detention must be subject to period review to ensure it is appropriate to the means. While the Committee stated that Australia should pay compensation to A for breaches his rights under the ICCPR, the Australian Government rejected the Human Rights Committee’s view and refused to pay compensation to A.[130] Furthermore, in most subsequent cases where the Human Rights Committee has found that Australia has violated the ICCPR, the Australian Government has rejected those views.[131]

Indefinite detention in Australia was also upheld in the High Court in the case of Al-Kateb v Godwin.[132] The Court found that indefinite detention was permitted under the Migration Act and the Constitution of Australia. In addition, the cases of Al Khafaji[133] and Behrooz[134] upheld this finding. In Al Kateb, Justice McHugh argued that

Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights which substantially adopts the rules found in the most important of the international human rights instruments. It is an enduring—and many would say just—criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights.[135]

As such, without a bill of rights, the indefinite detention of asylum seekers remains lawful within Australia, clearly in contradiction to international human rights law above and in sharp contrast to the European Union, UK and Canada.

C     Inhumane and Degrading Treatment

The Australian Human Rights Commission found that many of the detention centres within Australia might breach the rights of asylum seekers against inhumane and degrading treatment:

Prolonged and indefinite detention may also amount to cruel, inhuman or degrading treatment, in breach of Australia’s obligations under articles 7 and 10(1) of the ICCPR…because it can cause serious psychological harm. Australia has been found to be in breach of its obligations relating to cruel, inhuman or degrading treatment by subjecting people to prolonged indefinite immigration detention.[136]

As many medical studies show, the impacts of detention have significant effects on mental health. There have been numerous records of self harm, mental health issues and severe health risks in detention, especially in regards to detainees in detention for over two years.[137] However, the government continues this policy of mandatory detention, in breach of its obligations.

D     The Right Against Refoulement

While Australia in general respects the rights against refoulement, there are a number of concerns that are missing due to the lack of a bill of rights. Australia provides a sufficient status determination process, as well as complimentary protection in line with the Convention against Torture.[138] However, the recent policy announcements to send asylum seekers to Manus Island to be resettled in Papua New Guinea may mean that Australia may be breaching its obligations not to refouler people. While the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship[139] upheld the view that Australia cannot send an individual to a country where they may face harm, the subsequent Migration Legislation Amendment[140]brought by the government in response to the High Court decision sought to reverse this finding, leaving the decision about which countries can be used for offshore processing merely under the discretion of the Immigration Minister. As such, as the Human Rights Law Centre argue, the

Act breaches Australia’s international human rights obligations…It enables the government of the day to designate any country as a regional processing country, regardless of the human rights protections afforded in that country either under international or domestic law. This is likely to give rise to violations of Australia’s non- refoulement obligations under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention against Torture, all of which have been ratified by Australia.[141]

Thus, under the Migration Legislation Amendment, Australia can send asylum seekers to any country it chooses, even it this decision breaches its non-refoulement obligations, either directly or subsequently by further removals.

As such, it is clear that, due to the lack of a bill of rights, Australia is able to breach many of the rights of asylum seekers without many consequences. While a number of cases have been brought before the UN Human Rights Commission, Australia simply rejects these findings and continues its policies.

VI     Comparison and Conclusion

It is clear that a domestic bill of rights goes a long way in protecting the rights of asylum seekers. While a bill of rights does not provide complete protection, it does ensure adequate review mechanisms are established in order to provide protection to those seeking asylum. The UK Human Rights Act, together with the ECHR ensures that asylum seekers are protected in a number of vital ways.

Firstly, it ensures protection from refoulement and inhuman or degrading treatment due to Article 3 of the ECHR, as established in the cases of S and Others v Secretary of State for the Home Department,[142] and Chahal v UK.[143]Second, Article 5 protects against arbitrary detention, as established in Saadi v Secretary of State for the Home Department.[144]

In Canada, the Canadian Charter of Rights and Freedoms ensures against arbitrary detention, cruel and unusual treatment, as outlined in Charkaoui v Canada.[145] Furthermore, the case of Singh v Canada (Minister of Employment and Immigration),[146]ensures asylum seekers are provided with due process with applying for asylum.

Both these jurisdictions are in sharp contrast to Australia, which does not have a bill of rights. As such, Australia breaches its obligation to asylum seekers in a number of ways. The recent decision to deny all asylum seekers who come by boat a chance to apply for asylum in Australia breaches the Refugees Convention. The case of Al-Kateb v Godwin[147]shows that Australia allows for asylum seekers to be indefinitely detained, despite the possibility of inhumane and degrading treatment, contrary to the ICCPR. Finally, Australia may also refouler asylum seekers through Migration Legislation Amendment. Without a bill of rights, Australia is at risk of failing in its legal human rights obligations.

Thus the comparison is clear – the presence of a domestic bill of rights does in fact protect the rights of asylum seekers through a number of vital ways. While a bill of rights does not provide compete protection, the difference between countries with and without a bill of rights shows the importance of a domestic instrument. Furthermore, the EU system, together with the ECHR, provides even stronger protections of asylum seekers. In order to adequately uphold its human rights obligations, Australia should consider implementing a domestic bill of rights into its constitution.

[1] UN General Assembly, Universal Declaration of Human Rights (‘Universal Declaration’), 10 December 1948, 217 A (III).

[2] Andrew T Guzman and Timothy L Meyer, ‘International Soft Law’ (2010) 2 Journal of Legal Analysis 171, 188.

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

[4] International Covenant on Economic Social and Cultural Rights (‘ICESCR’), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

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

[6] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December1984, 1465 UNTS 85 (entered into force 26 June 1987).

[7] Universal Declaration, art 14.

[8] Susan Kneebone, Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009) 10.

[9] Alice Edwards, ‘Human Rights, Refugees, and The Right “To Enjoy” Asylum’ (2005) 17 International Journal of Refugee Law 293, 300.

[10] Refugees Convention, art 33.

[11] Convention against Torture, art 3.

[12] Kneebone, above n 8, 10.

[13] Refugees Convention, art 33.

[14] Guy S Goodwin-Gill, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 233.

[15] Convention against Torture, art 3.

[16] ICCPR, art 7. See, Goodwin-Gill, above n 14, 209.

[17] Jef Huysmans, ‘The European Union and the Securitization of Migration’ (2000) 38 JCMS: Journal of Common Market Studies 751, 753; Thomas Spijkerboer, ‘The Human Costs of Border Control’ (2007) 9 European Journal of Migration and Law 127, 131.

[18] Alice Bloch and Liza Schuster, ‘At the Extremes of Exclusion: Deportation, Detention and Dispersal’ (2005) 28 Ethnic and Racial Studies 491, 500.

[19] Universal Declaration, art 9.

[20] ICCPR, art 9.

[21] Ibid, art 9(4)

[22] United Nations Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.4.

[23] United Nations Human Rights Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002)

[24] Ibid, para 8.2.

[25] United Nations Human Rights Committee, Van Alphen v The Netherlands, Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990), para 5.8.

[26] Cathryn Costello, ‘Human rights and the elusive universal subject: immigration detention under international human rights and EU law’ (2012) 19(1) Indiana Journal of Global Legal Studies 274.

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

[28] Convention against Torture, art 16.

[29] See; Z Steel et al, ‘Psychiatric Status of Asylum Seeker Families Held for a Protracted Period in a Remote Detention Centre in Australia’ (2004) 28 Australian and New Zealand journal of public health 527; Z Steel, ‘The Mental Health Implications of Detaining Asylum Seekers.’ (2001) 175 Medical journal of Australia 596.

[30] United Nations Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.5.

[31] Convention for the Protection of Human Rights and Fundamental Freedoms(‘ECHR’), opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), as amended by Protocol No 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 27 May 2009, CETS No 204 (entered into force 1 September 2009).

[32] Ibid, art 3.

[33] Ibid, art 5.

[34] Ibid, art 6.

[35] Ibid, art 13.

[36] Ibid, art 5(1)(f).

[37] Ibid, art 5(4), (5)

[38] Costello, above n 26, 278.

[39] Chahal v The United Kingdom (1996) 23 ECHR 22414/93 (15 November 1996) 413.

[40] Ibid 79.

[41] Ibid 112.

[42] Ibid 113.

[43] Ibid 115–6.

[44] Costello, above n 26, 281.

[45] A and Others v The United Kingdom [2009] ECHR 3455/05 (19 February 2009) 301.

[46] Ibid 164.

[47] Sangeeta Shah, ‘From Westminster to Strasbourg: A And Others v United Kingdom’ (2009) 9 Human Rights Law Review 473, 476.

[48] United Nations Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997)

[49] Saadi v United Kingdom [2008] ECHR 13229/03 (29 January 2008).

[50] Ibid 80.

[51] United Nations Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.5.

[52] Costello, above n 26, 288.

[53] Council Directive 2005/85/EC, Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, 2005 O.J. (L326)

[54] Council Directive 2003/9, Laying Down Minimum Standards for the Reception of Asylum Seekers, 2003 O.J. (L31) 18

[55] Directive 2008/18, Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. (L 348) 98

[56] European Union, Charter of Fundamental Rights of the European Union, 7 December 2000, Official Journal of the European Communities, 18 December 2000 (OJ C 364/01).

[57] European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01

[58] Wolfgang Weis, ‘Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights after Lisbon’ (2011) 7 European Constitutional Law Review 64, 64.

[59] United Kingdom, Human Rights Act 1998.

[60] Lord Irvine, House of Lords 2nd Reading of the Human Rights Bill, 3 November 1997.

[61] United Kingdom, Human Rights Act 1998, purpose.

[62] European Convention Human Rights, art 3.

[63] Ibid, art 5.

[64] United Kingdom, Human Rights Act 1998, s 3(1).

[65] Ibid, s 4(1)

[66] Maria O’Sullivan, ‘The Intersection Between the International, the Regional and the Domestic: Seeking Asylum in the UK’ in Susan Kneebone (ed), Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009) 241.

[67] United Kingdom, Human Rights Act 1998, s 4.

[68] Ibid.

[69] O’Sullivan, above n 67, 236.

[70] Ibid.

[71] Charter of Fundamental Rights of the European Union, art 18.

[72] Council Directive 2003/9, Laying Down Minimum Standards for the Reception of Asylum Seekers, 2003 O.J. (L31) 18

[73] O’Sullivan, above n 67, 250.

[74] Ibid.

[75] Ibid 251.

[76] Ibid 252.

[77] Ibid 253.

[78] Ibid 255.

[79] Regina v. Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others, [2004] UKHL 55, United Kingdom: House of Lords (Judicial Committee), 9 December 2004

[80] Kneebone, above n 8, 13.

[81] S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157, United Kingdom: Court of Appeal (England and Wales), 4 August 2006,

[82] United Kingdom, Criminal Justice and Immigration Act 2008, s 130-7.

[83] O’Sullivan, above n 67, 263.

[84] R v. Secretary of State for the Home Department, Ex Parte Saadi (FC) and Others (FC), [2002] UKHL 41, United Kingdom: House of Lords (Judicial Committee), 31 October 2002,

[85] Ibid, para 45.

[86] R (on the application of S) v. Secretary of State for the Home Department; R (on the application of Q) v. Secretary of State for the Home Department; R (on the application of H) v. Secretary of State for the Home Department, [2008] EWHC 733 (Admin), United Kingdom: High Court (England and Wales), 11 April 2008.

[87] United Kingdom, Nationality, Immigration and Asylum Act 2002

[88] Ibid, 83-4

[89] Canada, Constitution Act 1982.

[90] FL Morton, ‘The Political Impact of the Canadian Charter of Rights and Freedoms’ (1987) 20 Canadian Journal of Political Science/Revue canadienne de science politique 31, 31.

[91] Audrey Macklin, ‘Asylum and the Rule of Law in Canada: Hearing the Other (Side)’ in Susan Kneebone (ed), Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009) 80.

[92] Ibid.

[93] Ibid.

[94] Singh v. Minister of Employment and Immigration , [1985] 1 S.C.R. 177, Canada: Supreme Court, 4 April 1985

[95] Macklin, above n 92, 85.

[96] Canada, Constitution Act 1982, s 7.

[97] Singh v. Minister of Employment and Immigration , [1985] 1 S.C.R. 177, Canada: Supreme Court, 4 April 1985, paras 46-7.

[98] Macklin, above n 92, 89.

[99] Ibid 82.

[100] Ibid 83.

[101] Canada, Balanced Refugee Reform Act 2010.

[102] Adam Fletcher, ‘Reception of “Irregular” Asylum Seekers: An International Comparison’ [2012] Unpublished.

[103] Refugee Lawyers’ Association of Ontario, ‘Imbalanced, And Unfair To The Most Vulnerable: Brief to the Standing Committee on Citizenship and Immigration Re Bill C-11, Balanced Refugee Reform Act’ (10 May 2010) <http://www.parl.gc.ca/Content/HOC/Committee/403/CIMM/WebDoc/Refugee%20Lawyers%20Assoc%20of%20ON%20E.pdf&gt;.

[104] Agreement Between the Government of Canada and the Government of the United States of America for the Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, 5 December 2002, in force 29 December 2004.

[105] Ibid.

[106] Canada, Constitution Act 1982, s 9.

[107] Canada, Immigration and Refugee Protection Act 2001.

[108] Fletcher, above n 103, 6.

[109] Ibid.

[110] Ibid.

[111] Canada, Immigration and Refugee Protection Act 2001

[112] Ibid, s 77.

[113] Canada, Immigration and Refugee Protection Act 2001, s 80(3)

[114] Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, Canada: Supreme Court, 23 February 2007

[115] Canada, Immigration and Refugee Protection Act 2001

[116] Canada, Immigration and Refugee Protection Act 2001.

[117] Canada, Constitution Act 1982, s 7.

[118] Charkaoui v. Canada (Citizenship and Immigration), para 19.

[119] Ibid, 28.

[120] Canada, Constitution Act 1982, s 9.

[121] Charkaoui v. Canada (Citizenship and Immigration), para 91.

[122] Canada, Constitution Act 1982, s 12.

[123] Charkaoui v. Canada (Citizenship and Immigration), para 110.

[124] Nicolas Kang-Riou, Confronting the Human Rights Act 1998: Contemporary Themes and Perspectives (Taylor and Francis, 2012) 86.

[125] This change came into place during writing and the exact details are still unknown.

[126] Lenore Taylor, ‘Rudd Announces Deal to Send All Asylum Boat Arrivals to Papua New Guinea’ The Guardian, 19 July 2013 <http://www.guardian.co.uk/world/2013/jul/19/kevin-rudd-asylum-boats-png&gt;.

[127] ‘No More Asylum in Australia for Those Arriving by Boat: Rudd’ The Conversation <https://theconversation.com/no-more-asylum-in-australia-for-those-arriving-by-boat-rudd-16238&gt;.

[128] Australia, Migration Act 1958 (Cth), s 189.

[129] Australian Human Rights Commission, ‘Australian Human Rights Commission Submission to the Expert Panel on Asylum Seekers’ (July 2012) para 17 <http://www.humanrights.gov.au/legal/submissions/2012/20120720_asylum_seekers.pdf&gt;.

[130] H Charlesworth, ‘Human Rights: Australia Versus the UN’ [2006] Democratic Audit of Australia 2 <http://democratic.audit.anu.edu.au/papers/20060809_charlesworth_aust_un.pdf&gt;.

[131] Charlesworth, above n 131.

[132] Al-Kateb v Godwin (2004) 219 CLR 562.

[133] Al-Kateb v. Godwin [2004] HCA 37

[134] Behrooz v. Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36.

[135] Al-Kateb v Godwin (2004) 219 CLR 562, [73].

[136] Australian Human Rights Commission, ‘Submission to the Joint Select Committee on Australia’s Immigration Detention Network’ (August 2011) para 46 <http://www.humanrights.gov.au/legal/submissions/2011/201108_immigration.pdf&gt;.

[137] See; Steel et al, above n 29; Steel, above n 29.

[138] Australia, Migration Amendment (Complementary Protection) Act 2011 (Cth).

[139] Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144

[140] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

[141] Letterfrom Philip Lynch, ‘Letter to PJCHR Requesting Inquiry’, 21 August 2012 <http://www.hrlc.org.au/files/Letter-to-PJCHR-requesting-inquiry.pdf&gt;.

[142] S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157, United Kingdom: Court of Appeal (England and Wales), 4 August 2006,

[143] Chahal v The United Kingdom (1996) 23 ECHR 22414/93 (15 November 1996) 413.

[144] R v. Secretary of State for the Home Department, Ex Parte Saadi (FC) and Others (FC), [2002] UKHL 41, United Kingdom: House of Lords (Judicial Committee), 31 October 2002,

[145] Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, Canada: Supreme Court, 23 February 2007

[146] Singh v. Minister of Employment and Immigration , [1985] 1 S.C.R. 177, Canada: Supreme Court, 4 April 1985

[147] Al-Kateb v Godwin (2004) 219 CLR 562.

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