Australian Journal of Human Rights
Australia has undertaken non-refoulement obligations under the Refugees Convention, CAT and the ICCPR. However, Australia’s interpretations of its non-refoulement obligations are so narrow, and its law and policy allowing visa refusals on bad character grounds is so sweeping, as to create a real possibility that Australia may return some asylum seekers to their countries of origin in breach of its international obligations.
Australia is a party to international treaties that impose protection obligations upon it. These treaties are the Convention Relating to the Status of Refugees (Refugees Convention), Protocol Relating to the Status of Refugees (Refugees Protocol), Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). The purpose of this article is to consider what protection obligations Australia has towards persons, who engage in bad conduct (falling short of internationally criminal conduct), after physical entry into Australia but prior to obtaining permanent resident or citizenship status, and whether Australia is fulfilling those protection obligations.
Recently passed domestic legislation has given Australian authorities the power to prevent a ship or aircraft reasonably suspected to be involved, or about to be involved, in a contravention of the Migration Act from entering, or remaining within, Australian territory (Migration Act 1958 (Cth) s 245F). Further, Christmas Island, Ashmore and Cartier Islands and Cocos (Keeling) Islands (previously the Australian destinations most usually chosen by people smugglers) are now defined to be ‘excised offshore places’ (Migration Act s 5). An ‘unlawful non-citizen’ who manages to enter an ‘excised offshore place’ is labeled an ‘offshore entry person’ (Migration Act s 5). Section 46A(1) of the Migration Act invalidates a purported visa application if it is made by an ‘offshore entry person’ who is an unlawful non-citizen in Australia.
Offshore entry persons can be taken to declared countries as defined in Migration Act s 198A. Offshore entry persons have been taken to Nauru and Papua New Guinea pursuant to this provision. Protection claims made by persons taken to declared countries are considered by officers of the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) under a process which DIMIA describes as being parallel to that employed by the Office of the United Nations High Commissioner for Refugees (UNHCR). This process is different from the process, initiated by a protection visa application, which applies in mainland Australia. Offshore entry persons making protection claims, who, for practical reasons, cannot be taken to a declared country, are kept detained at an excised offshore place while those claims are considered by DIMIA pursuant to the same process as it employs in declared countries. Persons processed in declared countries or excised offshore places, who are found to be refugees, may be offered access to ‘appropriate protection’ by Australia should protection not be available from other countries (DIMIA February 2002).
This article does not consider the situation of asylum seekers caught by the so-called ‘Pacific solution’ provisions outlined above. It considers only the situation of asylum seekers in Australia who are eligible to make protection visa applications. Persons, who arrive in Australia on valid temporary visas and then invoke Australia’s protection obligations, have always constituted the majority of Australia’s onshore asylum seekers. These persons continue to be able to make protection visa applications. Asylum seekers, who manage to get themselves to mainland Australia without prior authorisation (probably by coming by air rather than sea) and survive the ‘screening’ process, also continue to be permitted to make protection visa applications. Protection visas are divided into two subclasses: temporary and permanent. It is a criterion for the grant of a Permanent Protection Visa (PPV) that the applicant entered Australia pursuant to a valid visa or has previously been granted a Temporary Protection Visa (TPV) or Temporary Safe Haven Visa (Migration Regulations 1994 (Cth) Sch 2 cl 866.212). A successful protection visa applicant, who does not meet this criterion, can only be granted a TPV of three years duration in the first instance. Between the October 1999 introduction of the TPV and 8 February 2002, 7627 TPVs had been granted (Ruddock 13 March 2002). TPV holders may make further protection visa applications. However, a TPV holder making a protection visa application after 27 September 2001 is only eligible for the grant of a PPV if he or she has not, since leaving his or her home country, ever resided for a continuous period of seven days or more in a country in which he or she could have sought and obtained effective protection (Migration Regulations Sch 2 cl 866.215). Australia will, therefore, be host to a growing group of individuals forced to reapply for a protection visa on a regular basis. In short, notwithstanding the implementation of the ‘Pacific solution’, the issues considered in this article continue to be of relevance and significance.
Refugees Convention art 1A(2), as modified by Refugees Protocol art I(2), provides that for the purposes of the Convention, the term ‘refugee’ applies to any 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Refugees Convention arts 1D, 1E and 1F provide for the exclusion from refugee status of persons who would otherwise fall within the definition in art 1A. However, the exclusions are not of relevance to this article.
The prohibition on refoulement is the key provision of the Refugees Convention. Refugees Convention art 33(1) provides that no State party
shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
This non-refoulement obligation applies regardless of a refugee’s immigration status. According to art 33(2), however, the obligation does not apply in respect of a refugee whom:
there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Only the second limb of art 33(2) will be considered in this article.
Exclusion from protection under the second limb of art 33(2) requires that the person in question has been ‘convicted by a final judgement of a particularly serious crime’. Although there is some support for the view that ‘conviction of such a crime is alone conclusive of a danger to the community’ (DIMIA December 2001: 20), Lauterpacht and Bethlehem have concluded, after reviewing the current state of the law for UNHCR, that art 33(2) requires the additional showing that the nature and circumstances of the past offence are such as to suggest that the person poses an ongoing ‘danger to the community’ (Lauterpacht & Bethlehem 2001: paras 147 & 191).
The phrase ‘particularly serious crime’ used in art 33(2) is not defined in the Refugees Convention itself and there was no settled interpretation of the phrase in Australian case law. For example, there may have been conflict between Finklestein J’s decision in Betkhoshabeh v Minister for Immigration & Multicultural Affairs and Goldberg J’s decision in Vabaza’s case. In Betkhoshabeh, Finklestein J said that, if Goldberg J was saying in Vabaza’s case that ‘the offence of a threat to kill and the offence of rape are per se particularly serious crimes’, he was unable to agree. Finklestein J expressed the view that in most cases it would not be possible to characterize a crime as ‘particularly serious’ without having regard to the circumstances of its commission as well as to its nature.
Parliament has now responded to the Betkhoshabeh decision with Migration Act s 91U. Section 91U provides an inclusive (as opposed to exhaustive) definition of the phrase ‘particularly serious crime’. According to the Explanatory Memorandum accompanying Migration Legislation Amendment Bill (No. 6) 2001 (Cth) which inserted the provision, the purpose of s 91U is to ensure that the crimes specified are characterised as ‘particularly serious crimes’ regardless of the circumstances in which they were committed. However, the Explanatory Memorandum goes on to state:
The new provision does not affect the existing requirements at Article 33(2) that a person must be convicted by final judgement of a ‘particularly serious crime’ and must also be assessed as representing a risk to the community in order to be ineligible for protection. This latter consideration will continue to be undertaken on a case-by-case basis.
UNHCR, nevertheless, expressed concern about the automatic classification of certain crimes as ‘particularly serious’. It suggested that, at the least, the other requirement of art 33(2) - that the person with the conviction be assessed as ‘a danger to the community’ - also be set out in the legislation (UNHCR 13 September 2001: 4). UNHCR’s reluctance to rely on the assurance in the Explanatory Memorandum has proven to be wise. Subsequent to procuring the passage of s 91U the Australian Government has started positioning itself to adopt the approach of treating conviction of a ‘particularly serious crime’ as giving rise to a conclusive presumption that the person convicted is a danger to the community (DIMIA December 2001: 20-22 & 25).
Interpreted in light of subsequent developments in international human rights law, the art 33(2) exception also requires proportionality between the danger to itself, which a State averts by returning a refugee, and the danger to which the refugee is thereby exposed (Lauterpacht & Bethlehem 2001: para 183). According to Goodwin-Gill (1996: 140), State practice on the whole supports such a requirement. The proportionality requirement used to be recognised in Australian policy (DIMIA nd: para 6.3.6). However, the Australian Government’s continued application of a proportionality test cannot be taken for granted in light of recent statements by it that, although a State may choose to consider the consequences of returning a refugee to the country of feared persecution, there is no requirement to apply a proportionality test when assessing art 33(2) cases (DIMIA December 2001: 23 & 25).
The Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT) art 3 provides that no State party ‘shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ Refoulement, for the purposes of CAT art 3, is a concept similar to that contained in Refugees Convention art 33(1). The Australian Government accepts the view of the UN Committee Against Torture that CAT does not allow for derogation from art 3 under any circumstances (Direction No. 21 paras 2.20-2.21).
Unlike CAT, the International Covenant of Civil and Political Rights (ICCPR) does not contain an express non-refoulement obligation. Nevertheless, according to the UN Human Rights Committee, reading other provisions of the ICCPR in conjunction with ICCPR art 2(1) leads to the conclusion that removal of a person to another State, in circumstances which foreseeably expose the person to a real risk of violation of an ICCPR right, constitutes a violation of the ICCPR, by the removing State. Australian decision-makers are informed by a policy direction issued by the Minister for Immigration that
The International Convention [sic] on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of his or her rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) of the ICCPR, or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol to the ICCPR) (Minister for Immigration 23 August 2001: para 2.19).
The policy direction also explicitly states that the prohibition on refoulement under the ICCPR is absolute (para 2.21). This makes sense in a context where officially stated policy only accepts two non-derogable ICCPR rights and the Second Optional Protocol to the ICCPR as giving rise to a non-refoulement obligation at all.
The basic criterion for the grant of a protection visa is that the applicant 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’ or is the spouse or dependant of a protection visa holder (Migration Act s 36(2)). However, in order to be granted a protection visa an applicant must also satisfy, inter alia, public interest criterion 4001 (Migration Regulations Sch 2 cll 785.226 & 866.225). Public Interest criterion 4001 requires that:
(a) the applicant satisfies the Minister that the applicant passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test
Refusal of a protection visa for failure to satisfy the criteria set out in the Migration Regulations constitutes an exercise by the decision-maker of a power conferred by Migration Act s 65 (DIMIA 20 September 1999: para 2.1.3). It is important to understand, however, that Migration Act ss 501(1)-(3), 501A and 501B confer on the Minister for Immigration quite separate additional powers (delegable in the case of s 501(1) and (2)), to refuse or cancel a visa on the ground that the applicant is not of good character.
The ‘character test’ to which public interest criterion 4001 and ss 501, 501A and 501B refer is set out in Migration Act s 501(6). A s 65 delegate making a primary stage protection visa decision is required when assessing an applicant against public interest criterion 4001 to consider whether there is anything which would bring the applicant within the scope of the s 501 power. If the answer is yes, the s 65 delegate is required to forward the matter to a s 501 delegate for a decision by that delegate (DIMIA 20 September 1999: paras 6.2.2 – 6.2.4). Presumably the intent is that a refusal on character grounds is always going to be made under s 501 in the first instance.
In the usual case, a DIMIA primary stage protection visa refusal is subject to merits review by the Refugee Review Tribunal (RRT). However, where a decision to refuse a protection visa relies on art 1F, 32 or 33(2) of the Refugees Convention, or has been made by a delegate of the Minister under s 501, it is the Administrative Appeals Tribunal (AAT), not the RRT, which has merits review jurisdiction (Migration Act s 500(1) & (4)).
The Migration Act does not give the primary stage decision-maker, the RRT or the AAT the power to grant a protection visa to an applicant not meeting the criteria for grant of a protection visa. However, the Minister for Immigration has been given non-compellable personal powers to substitute for a decision of the RRT (Migration Act s 417) or an ‘AAT protection visa decision’ (Migration Act s 501J) another more favourable decision. In exercise of these powers the Minister is able to grant a protection visa applicant whatever visa the Minister thinks fit, even if the applicant does not satisfy the specified criteria for grant of a visa of that class. Among other things, these powers of intervention enable (but do not oblige) the Minister to grant visas to persons identified as being persons to whom Australia owes protection obligations under the CAT and/or the ICCPR, though not the Refugees Convention.
Migration Act s 501(6)(a) provides that a person does not pass the character test if the person has a ‘substantial criminal record’. A ‘substantial criminal record’ is defined in subs (7) as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
The remaining paragraphs of s 501(6) provide, inter alia, that a person does not pass the character test if
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia ....
The character test criteria were moved from the Migration Regulations into the Migration Act by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth). The provision inserted by the amending Act just named included the criteria now contained in Migration Act s 501(6)(b), (c) and (d)(i). Unlike the present character test, this previous version did not contain a reference to a ‘substantial criminal record’. However, Departmental guidelines stated that ‘[a] finding that a person is not of good character may be justified, in the absence of any mitigating circumstances’, if the person had what Migration Act s 501(7) now defines to be ‘a substantial criminal record’ (DIMIA 27 September 1996: para 188.8.131.52). In Minister for Immigration & Ethnic Affairs v Wendy Susan Baker, the Full Federal Court held that these guidelines were ‘inhumane and irrational’ and ‘could not lawfully be implemented’. The Court held that s 501 (as it then stood) required the decision maker to be satisfied ‘in relation to the actual present state of a person's character’. It went on to say:
Even criminal conduct may not lead to [the conclusion that the person ‘is not of good character’], perhaps because of the nature of the crime (certainly some absolute offences need involve no moral obloquy), or perhaps because of the lapse of time since the offence or the existence of positive evidence of reformation.
The words ‘good character’ in the section should ... be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.
Shortly after the decision in Baker was handed down, DIMIA revised its guidelines to take account of that decision (see DIMIA 22 April 1997) but this proved to be an interim measure only. In 1998, the Government procured the passage of Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), which recast s 501 into its present form. The two changes of particular relevance to this article are the enshrining of the ‘inhumane and irrational’ guidelines condemned by the Federal Court in Baker’s case in the Migration Act itself and the reversal of the onus of proof. The Minister for Immigration no longer bears the onus of showing that, at the time of consideration of a visa application, the applicant is not of good character. Rather the onus is on the person in question to prove that he or she is of good character. MSI 254 (DIMIA 20 September 1999) explains that the purpose of the current version of the character test is to specify ‘a series of largely objective criteria’, which the person being assessed can be found to either meet or not meet without need for ‘protracted inquiry’. According to MSI 254, this enables the decision-maker to focus upon ‘the issue of whether there is sufficient justification to exercise a discretion to allow someone who does not meet the character test to nevertheless enter or remain in Australia’ (DIMIA 20 September 1999: para 4.1.1).
The Minister for Immigration has, pursuant to Migration Act s 499(1), given written directions to decision makers tasked with making decisions to refuse or cancel a visa under s 501 (DIMIA 23 August 2001). Directions made under s 499(1) are binding on administrative decision-makers, other than the Minister himself (Migration Act s 499(2A); Aksu’s case), to the extent that they are not inconsistent with the Migration Act or Regulations (Migration Act s 499(2)).
The preamble of Direction no. 21 explains:
If the non-citizen does not pass the Character Test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them.
The primary considerations are:
Australia’s international protection obligations rate as considerations, but not as primary considerations (DIMIA 23 August 2001: para 2.18-2.24). Decision-makers are informed
When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations (DIMIA 23 August 2001: para 2.17).
In case that is not clear enough, Direction no. 21 expressly states
Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister (DIMIA 23 August 2001: para 2.24).
Crimes committed in immigration detention
A protection visa applicant, who is an unauthorised arrival, is usually ineligible for the grant of a bridging visa and is therefore subject to mandatory detention until removed from Australia, deported or granted a substantive visa. As previously noted, while there have been no further unauthorised boat arrivals since the implementation of the Pacific solution, unauthorised air arrivals continue. Moreover, while protection visa applicants, who arrived in Australia on valid temporary visas, are usually granted bridging visas, such a person may be detained instead if DIMIA believes this is warranted on the facts of the particular case. In summary, Australia’s Immigration Detention Centres (IDCs) will continue to have an asylum seeker population into the foreseeable future.
Since the occurrence of a couple of particularly high profile incidents in June and August 2000, there has been a steady stream of media reports about escapes and detainee riots involving violence and/or property damage occurring at one or other of IDCs. The detainees involved expose themselves to the possibility of being convicted of any number of criminal offences. Immigration detainees are, of course, subject to the normal operation of generally applicable criminal law. For example, those accused of damaging Commonwealth property could be charged with the offence of so doing (Crimes Act 1914 (Cth) s 29), which is an offence carrying a maximum penalty of 10 years imprisonment. Those accused of causing harm, or threatening to cause serious harm, to a Commonwealth public official could be charged with the offences of so doing (Criminal Code 1995 (Cth) s 147.1(1) & 147.2(1) respectively). These offences carry maximum penalties of 10 years imprisonment (or 13 years in the case of a law enforcement or judicial officer) and 7 years (or 9 years) imprisonment respectively.
Immigration detainees are also exposed to being charged with criminal offences specifically targeted at them. Migration Act s 197A makes escape from immigration detention an offence carrying a maximum penalty of five years imprisonment. Previously, this offence carried a maximum penalty of two years imprisonment. The new penalty corresponds to the penalty for escape from criminal detention (Crimes Act s 47). However, escape by asylum seekers from what is very likely to be ‘arbitrary detention’ under ICCPR art 9(1), cannot reasonably be considered to be as grave as escape by persons convicted and imprisoned for criminal offences (SLCRC 21 September 2001). Migration Act s 197B makes manufacture, possession, use or distribution of a weapon (very widely defined) by a detainee an offence carrying a maximum penalty of three years imprisonment. This should be compared with the maximum penalty of six months imprisonment under Public Order (Protection of Persons and Property) Act 1971 (Cth) s 10 – the provision under which they would otherwise be charged.
Finally, it should be noted that Criminal Code Ch 2 applies to all offences in the Criminal Code, the Crimes Act and Migration Act ss 197A and 197B (Crimes Act s 3BA; Migration Act s 197C). Among other things, application of Criminal Code Ch 2 has the effect that attempting to commit or inciting the commission of the offences described above are offences in themselves. Attempting to commit an offence carries the same maximum penalty as the offence attempted (Criminal Code s 11.1(1)). Incitement of an offence carries a maximum penalty of up to half that for the offence incited (Criminal Code s 11.4).
As rioting in, and escapes from, the IDCs continues, it can be expected that police and other officials will more aggressively pursue criminal convictions and do so on the most serious charges available. For example, detainees accused of assaulting other persons in the incident at Woomera IDC in August 2000 were charged under the Public Order Act 1971 s 6(2) with physical violence to another person in the course of unlawful assembly on Commonwealth premises – maximum penalty 12 months imprisonment (SLCLC November 2001). None of the charges resulted in convictions. By contrast, following an April 2001 incident at Curtin IDC and a May 2001 incident at Port Hedland IDC, detainees were charged with the more serious offences of hindering, intimidating, threatening and/or using violence against Commonwealth officers (SLCLC November 2001; AFP 2001: 37). The 19 adult detainees charged in relation to the May 2001 Port Hedland IDC incident were all convicted and sentenced to terms of imprisonment of between 6 and 11 months (SLCLC 19 February 2002: L&C 164).
In short, an immigration detainee, who gets caught up in an IDC ‘incident’, may easily find him or herself the possessor of a ‘substantial criminal record’ within the meaning of subs 501(7) and therefore fail to pass the character test. Of course, the decision-maker still has discretion as to whether to refuse to grant a visa on this basis and Direction no. 21 does require decision-makers (other than the Minister acting personally) to take Australia’s protection obligations into account as a relevant consideration in exercising the discretion. Let us suppose the decision-maker has decided that the person in question is a ‘refugee’ and turns his or her attention to the applicability of the non-refoulement obligation in Refugees Convention art 33. Migration Act s 91U informs the decision-maker that the phrase ‘particularly serious crime’ in art 33(2) includes a reference to:
an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) ..... or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
According to s 91U, the Criminal Code, Crimes Act and Migration Act offences mentioned above are all ‘particularly serious crimes’. As explained previously, Australia has recently displayed a disinclination to concede that art 33(2) requires not only conviction of such an offence, but also a separate determination that the person is an ongoing ‘danger to the community’. Australia has also displayed a disinclination to accept that reliance on art 33(2) requires a determination that there is proportionality between the danger to itself, which a State averts by returning a refugee, and the danger to which the refugee is thereby exposed. Moreover, while Australian law does not at present preclude account being taken of these considerations, the political reaction to crimes committed by immigration detainees does not inspire confidence that sufficient account will be taken of them in actual practice. For example, in December 2001, DIMIA responded to rioting involving violence and property damage at Woomera IDC with the statement,
This deliberate criminal activity will not force the Government to expedite or influence the visa granting process. If those responsible for this criminal damage can be identified and prosecuted it will have a direct impact on any visa application... (DIMIA 19 December 2001)
In a similar vein, the Minister for Immigration, when asked about the probable fate of the March 2002 escapees from Woomera IDC once recaptured, said:
Let me just say that it is an offence under our law to escape from lawful custody and so the next question is, do you have evidence of an offence? If you do a decision is taken as to whether people will be prosecuted. If the prosecution is successful there may well be sanctions applied and that can be, depending upon the severity of the incidents, quite significant ... If people commit a serious offence under our law and that involves jail sentences, that can lead to protection claims being vitiated. We have no requirement under our law to give protection to people who commit serious criminal offences and that's part of the reality (Ruddock 30 March 2002).
What makes the possible consequences of crimes committed in immigration detention unpalatable is that many of those crimes are indirectly attributable to Australian Government policies and practices that are in urgent need of reform. As the Uniting Church in Australia has observed:
....it is clear that most asylum seekers are highly traumatised on arrival in Australia. To then mandatorily detain them, could be considered as placing people in situations which are unbearable. Subject to such systemic trauma, asylum seekers may take desperate action within the detention centre. Whilst the Uniting Church does not condone violence, it is possible to see that situations may easily escalate because of the detention itself, the lack of immediate appropriate translation services and cultural awareness (Uniting Church in Australia 2001: 3).
Crimes committed in the community
Most protection visa applicants, who arrived in Australia on valid temporary visas, are granted bridging visas pending determination of their substantive visa application and allowed to remain at liberty in the community. Those granted TPVs are also, of course, released into the community. Let us now consider the possible impact of the character requirement on these persons.
The restrictions placed by the Australian Government on asylum seekers’ access to work entitlements and publicly funded social assistance in recent years have not been off-set by other sources, leading to a marked erosion in the standard of living of asylum seekers (Taylor 2000). TPV holders are upon release subjected to socio-economic conditions almost as grim as those experienced by asylum seekers. While TPV holders are free to work, in practice they find it extremely difficult to obtain work (Mann 2001: 23). They are given access to a minimum package of Commonwealth-funded social assistance. However, they are barred from accessing the Commonwealth-funded general and special settlement services to which PPV holders have access, for example, employment assistance services (apart from basic job matching), tertiary education (except on a full-fee paying basis), free English language tuition and various accommodation and support services (Mann 2001: 9). They are also denied family reunion rights (DIMIA 13 March 2002).
Criminological literature shows that there is positive correlation between unemployment rates on the one hand and arrest and imprisonment rates on the other (Mukherjee 1999: 6; HREOC 2001: 12-3). It also shows that ‘social exclusion and marginalisation’ increases the risk that an individual will engage in criminal activity (Syme 1999: 171). In other words, the economic and social conditions to which asylum seekers and TPV holders are subjected are conditions that have been identified as predisposing individuals to involvement in crime. When one adds to this the evidence of ‘some bias against minority groups in their contacts with the criminal justice system’ (Mukherjee 1999: 6), it is only to be expected that at least some asylum seekers and TPV holders will become the possessors of a ‘substantial criminal record’.
If an asylum seeker or TPV holder does acquire a ‘substantial criminal record’, he or she is exposed to the danger of having any pending or subsequent application for a protection visa refused. Ideally, of course, in exercising the statutory discretion to refuse a visa on character grounds, a decision-maker would take into account the requirement that an ongoing ‘danger to the community’ must be established before a refugee is excluded from protection under Refugees Convention art 33(2). However, if the socio-economic and other factors, which contributed to the commission of the past offence, can be expected to continue into the future, the decision maker is likely to form the judgment that there is at least some risk of recidivism. Given that the Government’s purpose in passing Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 was to ensure that the benefit of any doubt is given to Australia rather than the applicant (Ruddock 2 December 1998), the formation of such a judgment will significantly reduce the likelihood of the decision maker exercising his or her discretion in favor of the applicant.
Again, what makes the possible consequences of crimes committed in the community unpalatable is that, as with crimes committed in immigration detention, many of these crimes are likely to be indirectly attributable to Australian Government policies and practices that are in urgent need of reform.
The point in need of emphasis is that it is possible for a person without any criminal convictions to fail the character test on one of the grounds set out in s 501(6)(b)-(d). It is possible, therefore, that a Refugees Convention refugee, who has not been convicted of a ‘particularly serious crime’ or any crime, may be refused a visa in exercise of the s 501 discretion and returned to his or her country of origin in breach of Australia’s art 33 non-refoulement obligation.
Consider, for example, the hypothetical case of a male asylum seeker, who, with the assistance of a ‘people smuggler’, successfully uses false documents to board regularly scheduled international flights from his home country to a transit country, where he spends eight days, and then from the transit country to Australia. He presents his asylum claim to an official upon arrival at an Australian airport. He is permitted to make a protection visa application and, being successful, is granted a TPV. However, as the holder of a TPV he does not have family reunion rights and if he leaves Australia during its currency he will not be allowed to return (Migration Regulations Sch 2 cl 785.511). Desperate to ensure the safety of his wife he maintains contact with the people smuggler who arranged his journey to Australia hoping that at some point he will be able to pay that person to assist his wife to make an unauthorised journey to Australia. All of this comes out three years later when a primary decision-maker is considering an application by the TPV holder for a new TPV.
The people smuggler in the example is a person who has committed a criminal offence or offences under Migration Act ss 232A, 233 and/or 233A. Since the applicant in the example has maintained contact with the people smuggler he falls within Migration Act s 501(6)(b). He would therefore fail the character test and the decision-maker would then go on to exercise the discretion keeping in mind that primary considerations in so doing are the protection of the Australian community and the expectations of the Australian community. In relation to protection of the Australian community, Direction no. 21 states:
The Australian Government seeks to take reasonable steps to protect the Australian community from the actions or criminals and to take action to lessen the risk of crime and disorder within the Australian community....
The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). (DIMIA 23 August 2001: paras 2.4-2.5)
The TPV applicant in our example has engaged in conduct which the Australian Government regards as being seriously bad. He has associated with people smugglers with a view to facilitating a future unauthorised arrival. The likelihood that the conduct may be repeated can reasonably be assessed as extremely high, since the applicant will never have a legal opportunity to be reunited with his wife in Australia. Finally, in keeping with the premise underlying the whole of Australian asylum seeker law and policy, visa refusal would be seen as having a general deterrence value. In short, the primary consideration of protection of the Australian community would point in this case to visa refusal.
Turning to the other relevant primary consideration, Direction no. 21 spells out the expectations of the Australian community as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect. (DIMIA 23 August 2001: para 2.12)
Clearly, application of this consideration would simply reinforce the view arrived at upon application of the previous consideration. Given that Australia’s international obligations are not ‘primary considerations’ under official policy guidelines, there can be no assurance that a decision-maker faced with such a case, would decide that notwithstanding the ‘primary considerations’ pointing towards visa refusal he or she ought nevertheless to grant the person in question a protection visa in order to avoid breach of Australia’s international protection obligations.
Australia acknowledges that CAT and ICCPR impose non-derogable protection obligations. In other words, it accepts (in theory) that the past, present or predicted future bad conduct or character of a person claiming protection under these treaties should not be treated as a relevant factor in determining the claim. However, the only way in which an asylum seeker can secure the opportunity of presenting CAT and/or ICCPR claims to the only person actually able to address them (the Minister for Immigration), is by first going through the motions of presenting a Refugees Convention claim to a DIMIA primary stage decision maker and, assuming rejection on character grounds, making a futile merits review application to the AAT. A decision to grant a visa to a person, who has already been rejected on character grounds by two administrative decision makers, is not a decision that any politician is going to be enthusiastic about making. Since the decision not to consider the exercise of the intervention power is one for which the Minister is not legally or politically accountable, there would be strong temptation to simply not consider the exercise of the intervention power in such cases. It is far from satisfactory, therefore, that the Minister’s powers of intervention should be the only safeguard against breach of protection obligations owed under CAT and/or ICCPR.
Persons falling within the Refugees Convention definition of ‘refugee’ may nevertheless be excluded by art 33(2) from invoking the non-refoulement obligation contained in art 33(1). It does not necessarily follow, however, that persons so excluded have no entitlement to international protection. CAT and the ICCPR both impose on States parties non-refoulement obligations that may still apply. This article has demonstrated that Australia’s interpretations of its non-refoulement obligations are so narrow, and its law and policy allowing visa refusals on bad character grounds is so sweeping, as to create a real possibility that Australia may return some asylum seekers to their countries of origin in breach of its non-refoulement obligations.
If Australia is serious about fulfilling its non-refoulement obligations under the Refugees Convention, CAT and ICCPR, the Migration Act should be amended so that the basic criterion for grant of a protection visa is stated to be that the applicant 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 or under CAT or under the ICCPR’. Protection visa decision makers at both primary and merits review stage would then have jurisdiction to grant protection visas to persons owed protection obligations under any of these treaties. Moreover, the Migration Act and Migration Regulations should be amended so that public interest criterion 4001 is no longer a requirement for grant of a protection visa additional to that of being a person to whom Australia has international protection obligations and so that the separate powers of refusal and cancellation of visas on character grounds contained in ss 501, 501A and 501B do not apply to protection visas. These reforms would allow for the refusal of a protection visa to a person making only Refugees Convention protection claims, if he or she falls outside the definition of a ‘refugee’ or is not owed an art 33(1) protection obligation, but not otherwise. At the same time, the reforms recommended would ensure that Australia does not breach its non-derogable protection obligations under CAT and/or ICCPR. These are reforms easily accomplished, if Australia is serious about fulfilling its non-refoulement obligations.
‘A’ v Minister for Immigration & Multicultural Affairs  1018 FCA (17 August 1998)
Aksu v Minister for Immigration & Multicultural Affairs  FCA 514 (4 May 2001)
Barbaro v Minister for Immigration and Ethnic Affairs  FCA 141; (1982) 44 ALR 690
Betkhoshabeh v Minister for Immigration & Multicultural Affairs  FCA 934 (29 July 1998)
Minister for Immigration & Multicultural Affairs v Betkhoshabeh  FCA 980 (20 July 1999)
Minister for Immigration & Ethnic Affairs v Wendy Susan Baker  105 FCA (26 February 1997)
Minister for Immigration & Multicultural Affairs v Chan  FCA 1552 (13 September 2001)
Re Tuong Quang Luu and: Minister for Immigration, Local Government and Ethnic Affairs (unreported Full Federal Court of Australia, 19 December 1989)
Thiyagarajah v Minister for Immigration & Multicultural Affairs  1494 FCA (19 December 1997)
Vabaza v Minister for Immigration & Multicultural Affairs  148 FCA (27 February 1997)
Van Cuong Nguyen v Minister for Immigration & Multicultural Affairs [No 2]  FCA 225 (7 March 2000)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Public Order (Protection of Persons and Property) Act 1971 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Australian government policy documents
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) MSI 150: The Character Requirement 27 September 1996 (now superceded)
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) MSI 164: The Character Requirement 22 April 1997 (now superceded)
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) MSI 254: The Character Requirement: Visa Refusal and Cancellation under Section 501 20 September 1999
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) Protection Visa Procedures Manual no date (currently withdrawn)
Minister for Immigration Direction no 21 – Visa Refusal and Cancellation under section 501 23 August 2001
International legal material
Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT), opened for signature 10 December 1984, ATS 1989 No. 21 (entered into force generally 26 June 1987 and for Australia 7 September 1989)
Convention Relating to the Status of Refugees (Refugees Convention), opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
International Covenant of Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force generally 23 March 1976 and for Australia 13 November 1980)
Protocol Relating to the Status of Refugees (Refugees Protocol), opened for signature 31 January 1967, 606 UNTS 267 (entered into force generally 4 October 1967 and for Australia 13 December 1973)
Australian Federal Police (AFP) Annual Report 2000 – 2001
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) Answer to Question no. 29 Taken on Notice at Senate Legal and Constitutional Legislation Committee (SLCLC) Additional Estimates Hearing 19 and 22 February 2002 February 2002 (Available from SLCLC Secretariat)
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) Fact Sheet 61: Seeking Asylum Within Australia 13 November 2001
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) Fact Sheet 64: Temporary Protection Visas 13 March 2002
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) Fact Sheet 73: People Smuggling 16 November 2001
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) Principle of Non-Refoulement (Article 33): An Australian Perspective. A paper prepared as a contribution to the UNHCR’s Expert Roundtable Series December 2001
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) Six Staff Injured as Damage Bill at Woomera Climbs to $2 Million media release DPS 59/2001 19 December 2001
Goodwin-Gill G The Refugee in International Law (2nd ed) Clarendon Press, Oxford 1996
Hearn J & Eastman K ‘Human rights issues for Australia at the United Nations -Australia's non-refoulement obligations under the Torture Convention and the ICCPR’  AUJlHRights 10; (2000) 6(1) Australian Journal of Human Rights 216-238
Human Rights and Equal Opportunity Commission (HREOC) Face the Facts 2001
Lauterpacht E & Bethlehem D The Scope and Content of the Principle of Non-Refoulement. Opinion prepared for UNHCR 20 June 2001
Mann R Temporary Protection Visa Holders in Queensland Queensland Government February 2001
Mukherjee S Trends and Issues in Crime and Criminal Justice No. 117: Ethnicity and Crime Australian Institute of Criminology, Canberra 1999
Ruddock P Parliamentary Debates House of Representatives 2 December 1998 p 1229 (second reading speech)
Ruddock P Parliamentary Debates House of Representatives 13 March 2002 p 1294
Ruddock P Transcripts: Update on Protests at Woomera and Villawood Detention Centres 30 March 2002 http://www.minister.immi.gov.au/transcripts/transcripts02/woomprotest_300302.htm
Saunders M & Spencer M ‘Police Confront Copycat Breakouts’ Weekend Australian 10-11 June 2000 p 5
Saunders M & Spencer M ‘Refugees Riot in Desert’ Australian 29 August 2000 p 1
Senate Legal and Constitutional Legislation Committee (SLCLC) Examination of Budget Estimates 2001-2002 Additional Information vol 2 Immigration and Multicultural Affairs Portfolio November 2001 answers to questions no. 57 and no. 58 http://www.aph.gov.au/senate/committee/legcon_ctte/quest_answers/indexest.htm
Senate Legal and Constitutional Legislation Committee (SLCLC) Proof Committee Hansard: Consideration of Additional Estimates 19 February 2002
Senate Legal and Constitutional References Committee (SLCRC) Official Committee Hansard: Reference Migration Legislation Amendment Bill (No. 6) 2001 21 September 2001
Syme D ‘Community Education and Awareness Campaign’ in Support for Victims of Crime Responding to the Challenges of Diversity: Different Cultures; Different Needs Victims Referral and Assistance Service, Melbourne 1999
Taylor S ‘Do On-Shore Asylum Seekers Have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy’ (2000) 1 Melbourne Journal of International Law 71-98
UNHCR Submission no. 13 to SLCRC Inquiry into Migration Legislation Amendment Bill (no. 6) 2001 13 September 2001. (Available from SLCRC Secretariat)
Uniting Church in Australia Submission no. 7 to SLCRC Inquiry into Migration Legislation Amendment Bill (no. 6) 2001 14 September 2001. (Available from SLCRC Secretariat)
[*] Savitri Taylor (PhD (Melb) LLB (Hons)(Melb) B Com (Melb)) is a Senior Lecturer in the School of Law and Legal Studies at La Trobe University and Secretary of the Committee of Management of the Refugee and Immigration Legal Centre in Victoria. She has been researching and publishing on Australian and international asylum seeker law and policy since 1991. The author gratefully acknowledges the ARC funding provided for this research through a La Trobe University Faculty of Law and Management Research Grant and the research assistance provided by Julian Littler. The views expressed in this article are the author’s and not necessarily those of the funding bodies or of the organizations with which she is involved.
 There is also provision for ‘any other external territory or island’ to be prescribed by regulation to be an excised offshore place.
 That is, a non-citizen who is present in Australia’s migration zone without a valid visa. (Migration Act ss 13 & 14).
 The Minister for Immigration is, however, given a non-compellable power to exempt a particular person from the operation of s 46A(1), if the Minister thinks that it is in the public interest to do so (Migration Act s 46(2)-(7)).
 Before 26 November 2001, DIMIA was called the Department of Immigration & Multicultural Affairs. However, the new name is used throughout for the sake of convenience.
 The majority of the 13015 protection visa applications lodged in 2000-01 were lodged by persons who arrived in Australia on a valid temporary visa (DIMIA 13 November 2001).
 In the reporting year 2000-01 there were 1508 unauthorised air arrivals and 4141 unauthorised sea arrivals (DIMIA 16 November 2001).
 The Minister for Immigration has the power to waive this requirement.
 Refugees Convention art 1A(1) defines an additional category of refugee, but it is a category that has little relevance now.
 Article 1F provides:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
Article 1F(a) and (c) are not relevant since this article leaves out of consideration persons whose bad conduct is so egregious as to be internationally criminal. Article 1F(b) is not relevant because this article deals only with persons who engage in bad conduct after physical entry into Australia.
 It is important to note that the making of a refugee status determination by a State or any other authority is declaratory and not constitutive of refugee status.
 Despite its apparently restrictive wording, art 33(1) does not allow a refugee to be sent to a place where he or she is exposed to persecution other than deprivation of life or freedom nor does it allow a refugee to be sent to a place where he or she has a ‘well-founded fear of being persecuted’, simply because the chance of persecution falls short of certainty. In short, art 33(1) must be read in the light of the definition of ‘refugee’. This position is accepted in Australian practice ( Thiyagarajah’s case).
 Since September 2001 this Manual has been withdrawn pending an update of its contents.
 These rights are ones that cannot be derogated from under any circumstances (ICCPR art 4(2)).
 The nature of the Human Rights Committee’s reasoning suggests, in fact, that the ICCPR non-refoulement obligation extends to protection from violation of any ICCPR right (Hearn & Eastman 2000). If ICCPR rights not specified to be non-derogable do give rise to a non-refoulement obligation, the Australian Government may, of course, attempt to rely on the art 4(1) derogation provision.
 Neither the AAT nor the RRT can review decisions made personally by the Minister under ss 501, 501A or 501B (Migration Act ss 500(1) & (4), 501A(7), 501B(4)) (DIMIA 20 September 1999: para 10.1.1)
 Migration Act s 501J(2) provides, ‘For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa.’ It appears, therefore, to cover an AAT decision relating to a s 501 refusal or cancellation of a protection visa.
 Exception is made for persons falling within one of a few narrowly circumscribed classes.
 The Migration Act provides that an unlawful non-citizen must be detained until removed from Australia, deported or granted a visa (ss 189 and 196(1)).
 On 8 June 2000, approximately 500 detainees walked out of Woomera IDC into the town centre and staged a 48-hour protest (Saunders & Spencer 10-11 June 2000: 5). In late August 2000, about 80 detainees at Woomera IDC were involved in a riot that resulted in damage to some IDC buildings and injury to several Australasian Correctional Management (ACM) staff (Saunders & Spencer 29 August 2000: 1).
 Detainees accused of causing property damage by fire etc in the August 2000 Woomera IDC incident were charged under this provision (SLCLC November 2001).
 These provisions were inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth). They replace Crimes Act s 76, which imposed a maximum penalty of 2 years imprisonment for the offence of resisting or obstructing a commonwealth officer.
 Detainees accused of throwing stones in the August 2000 Woomera IDC incident were charged under this provision (SLCLC November 2001).
 The August 2000 incident resulted in 26 detainees being charged with a variety of offences. However, no criminal convictions resulted from these charges. In six cases, police dropped charges, in 17 cases the Director of Public Prosecutions dropped charges, in two cases the court dismissed charges and in the remaining case the defendant was acquitted (SLCLC November 2001).
 Three juveniles involved in the May 2001 incident were referred to special juvenile processes (SLCLC 19 February 2002: L&C 164 (evidence of Mr Keelty, AFP). At the time of writing no information about their fate or the fate of those charged in relation to the April 2001 Curtin IDC incident was available to the author.
 Special Benefit, Rent Assistance, Family Tax Benefit, Child Care Benefit, Double Orphan Pension, Maternity Allowance and Maternity Immunisation Allowance, Medicare benefits, referral to the Early Health Assessment and Intervention Program, and torture and trauma counselling (DIMIA 13 March 2002).
 It is also worth noting in the present context that it is now a criterion for the grant of a PPV that the applicant ‘has not, in the last 4 years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months’ (Migration Regulations Sch 2 cl 866.222A).
For some examples of the manner in which administrative decision makers assess the risk of recidivism and balance that risk against other considerations see Barbaro v Minister for Immigration and Ethnic Affairs, Re Tuong Quang Luu and: Minister for Immigration, Local Government and Ethnic Affairs, ‘A’ v. Minister for Immigration & Multicultural Affairs, Minister for Immigration & Multicultural Affairs v Betkhoshabeh and Van Cuong Nguyen v Minister for Immigration & Multicultural Affairs [No 2].
 Section 228A provides that the subdivision creating the offences applies both in and outside Australia.
 The word ‘association’ in para 501(6)(b) has been interpreted very broadly (Minister for Immigration & Multicultural Affairs v Chan).