Taylor, Savitri --- "Guarding the Enemy from Oppression: Asylum-Seeker Rights Post-September 11" [2002] MelbULawRw 21; (2002) 26(2) Melbourne University Law Review 396
[*] BCom, LLB (Hons), PhD (Melb); Senior Lecturer, School of Law and Legal Studies, La Trobe University; Barrister and Solicitor of the Supreme Court of Victoria. The author gratefully acknowledges the Australian Research Council funding provided for this research through a La Trobe University Faculty Research Grant and the research assistance provided by Julian Littler.
[1] Thomas Paine, ‘Dissertation on First Principles of Government’ in Nelson Adkins (ed), Thomas Paine: Common Sense and Other Political Writings (1953) 155, 174.
[2] Commonwealth, Parliamentary Debates, House of Representatives, 21 March 2002, 1930 (Daryl Williams, Attorney-General).
[3] Dennis Atkins, ‘PM Links Terror to Asylum Seekers’, The Courier-Mail (Brisbane), 7 November 2001, 1; Mike Seccombe, ‘Politics of Fear Works Well for PM’, The Sydney Morning Herald (Sydney), 19 September 2001, 8.
[4] See, eg, Paul Daley, ‘Saddam Agents in Australia: Exiles’, The Sunday Age (Melbourne), 28 April 2002, 4.
[5] The Australian government has the opportunity to carry out various character and security checks in respect of non-citizens who apply for visitor and other temporary visas, and to deny entry to those who would pose a danger to the Australian community. However, in very many cases, character checks consist only of asking applicants questions about their character on the visa application form: Jennifer Burn and Anne Reich, The Immigration Kit: A Practical Guide to Australia’s Immigration Law (6th ed, 2001) 542. The Australian Security Intelligence Organisation (‘ASIO’) reported that in 2000−01 it had conducted 33 919 visa security checks (excluding Olympics-specific work and unauthorised arrivals): ASIO, Report to Parliament 2000–2001 (2001) 4. In other words, security checks were carried out on only a very tiny percentage of the five million visitors, 146 577 students and 76 500 working holiday-makers granted visas in 2000−01: Department of Immigration and Multicultural Affairs, Annual Report 2000−01 (2001) <http://www.immi.gov.au/annual_report/annrep01/> at 1 July 2002.
[6] This was certainly the experience of the United States, which found that the September 11 hijackers had entered the country on valid student, business or tourism visas: Oriana Zill, Crossing Borders: How Terrorists Use Fake Passports, Visas and Other Identity Documents (2001) PBS Frontline <http://www.pbs.org/wgbh/pages/frontline/shows/trail/etc/fake.html> at 1 July 2002.
[7] Alexander Downer (Minister for Foreign Affairs), cited in Lindsay Murdoch, ‘Drug Rings Turning to Boat People’, The Age (Melbourne), 27 February 2002, 3; Robert Hill (Minister for Defence), cited in Ian Henderson, ‘Canberra to Put Heat on Indonesia’, The Australian (Sydney), 25 February 2002, 4. According to ASIO, its security checking of all types of visa applicants in 2000−01 resulted in only five visa refusals or cancellations. Three of the five were assessed as likely to engage in espionage, one had an identified link to a terrorist group and one was assessed as a risk to national security because of their involvement in politically motivated violence. Only this last person was identified as an applicant for a protection visa. It was not stated whether the asylum-seeker in question had arrived in Australia without authorisation. See ASIO, above n 5, 22.
[8] According to a newspaper report, which cites a senior government official as its source, ‘[a] number of Australians who trained with Osama bin Laden’s al Qaeda terrorist network in Afghanistan are back living in Australia and their movements are monitored by security agencies’: Brendan Nicholson, ‘Al Qaeda Members Watched’, The Sunday Age (Melbourne), 5 May 2002, 1.
[9] See Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2], Suppression of the Financing of Terrorism Bill 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 (2002); Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, Review of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002: Unfinished Inquiry Report (2002).
[10] See Border Security Legislation Amendment Act 2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth); Security Legislation Amendment (Terrorism) Act 2002 (Cth); Suppression of the Financing of Terrorism Act 2002 (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth). As at 1 August 2002, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) remained unenacted.
[11] Criminal Code (Cth) div 101.1.
[12] Division 101.6.
[13] Division 101.2.
[14] Division 101.4.
[15] Division 102.
[16] Opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Refugees Convention’). Australia’s accession was lodged on 22 January 1954.
[17] Opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Refugees Protocol’). Australia’s accession was lodged on 13 December 1973.
[18] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’). Australia’s accession was lodged on 7 September 1989.
[19] Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). Australia’s accession was lodged on 13 November 1980.
[20] Recently passed 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 1958 (Cth) from entering, or remaining within, Australian territory: Migration Act 1958 (Cth) s 245F. Further, Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands (previously the Australian destinations most commonly chosen by people-smugglers) are now defined as ‘excised offshore places’: Migration Act 1958 (Cth) s 5. An ‘unlawful non-citizen’ (see Migration Act 1958 (Cth) ss 13−14) who manages to enter an ‘excised offshore place’ is labelled an ‘offshore entry person’: Migration Act 1958 (Cth) s 5. Section 46A(1) 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’: Migration Act 1958 (Cth) 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 and 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 detained at an excised offshore place while their claims are considered by DIMIA pursuant to the same process 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 in other countries’: DIMIA, Answer to Question 29 Taken on Notice, Additional Estimates Hearing 19, 22 February 2002: Examination of Additional Estimates 2001–2002 (2002) Senate Legal and Constitutional Legislation Committee, <http://www.aph.
gov.au/senate/committee/legcon_ctte/quest_answers/Aeo1-02_Vol%202.pdf> at 1 July 2002.
[21] In the reporting year 2000−01 (ie, before the introduction of the new border control measures) there were 1508 unauthorised air arrivals and 4141 unauthorised sea arrivals: DIMIA, Fact Sheet 73: People Smuggling (2001) <http://www.immi.gov.au/facts/73smuggling.htm> at 1 July 2002. Although the new border control measures have thus far been successful in preventing unauthorised sea arrivals reaching mainland Australia, they are unlikely to lead to a significant reduction in unauthorised air arrivals.
[22] See also Savitri Taylor, ‘Rethinking Australia’s Practice of “Turning Around” Unauthorised Arrivals: The Case for Good Faith Implementation of Australia’s Protection Obligations’ (1999) 11 Pacifica Review: Peace, Security & Global Change 43.
[23] DIMIA, Protecting the Border: Immigration Compliance (2000) ch 1 <http://www.immi.gov.au/
illegals/border2000/border11.htm> at 1 July 2002.
[24] Commonwealth, Parliamentary Debates, House of Representatives, 18 February 2002, 401 (Roger Price, Member for Chifley).
[25] The majority of the 13 015 protection visa applications lodged in 2000−01 were lodged by persons who arrived in Australia on a valid temporary visa: DIMIA, Fact Sheet 61: Seeking Asylum Within Australia (2001) <http://www.immi.gov.au/facts/61asylum.htm> at 1 July 2002.
[26] Migration Act 1958 (Cth) s 36(2).
[27] Migration Regulations 1994 (Cth) sch 2, cll 785.226, 866.225. See below n 108 for details of public interest criterion 4001.
[28] Migration Regulations 1994 (Cth) sch 2, cll 785.227, 866.226.
[29] Migration Regulations 1994 (Cth) sch 4, pt 1, 4002.
[30] Migration Regulations 1994 (Cth) sch 2, cl 866.212.
[31] Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2002, 1294 (Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs).
[32] Migration Regulations 1994 (Cth) sch 2, cl 866.215. The Minister for Immigration has the power to waive this requirement.
[33] It is important to note here that the making of a refugee status determination by a state or any other authority is declaratory and not constitutive of refugee status: Guy Goodwin-Gill, The Refugee in International Law (2nd ed, 1996) 141.
[34] Despite its apparently restrictive wording, art 33(1) also prevents a refugee from being sent to a place where he or she would be exposed to a form of persecution other than deprivation of life and freedom; in addition, it will not allow a refugee to be sent to a place where he or she has a ‘well-founded fear of being persecuted’ simply because the occurrence of persecution is not a certainty. In short, art 33(1) must be read in the light of the definition of ‘refugee’. This position is accepted in Australian practice: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.
[35] Refugees Convention art 1A(1) defines an additional category of refugee, but it is a category that has little relevance now.
[36] The interpretation of this provision will not be considered at length in this article. Rather, reliance will be placed on the conclusions drawn in work published elsewhere. Most relevant for present purposes is Savitri Taylor, ‘Reconciling Australia’s International Protection Obligations with the “War on Terrorism”’ (2002) 14 Pacifica Review: Peace, Security & Global Change 121.
[37] For detailed consideration of the interpretation of these provisions, see ibid.
[38] Philip Ruddock (Minister for Immigration and Multicultural Affairs), Direction under Section 499: Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 — Direction No 21 (2001) [2.20]–[2.21]. Since the CAT protection obligation is narrower than the ICCPR protection obligation, its implementation will not receive much separate consideration in the remainder of this article.
[39] Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, UN GAOR, 44th sess, 82nd plen mtg, Annex to GA Res 128, UN Doc A/Res/44/128 (1989) (‘Second Optional Protocol’). The Second Optional Protocol was opened for signature on 15 December 1989 and entered into force 11 July 1991.
[40] Ruddock, above n 38, [2.19], [2.21].
[41] ICCPR art 13 provides:
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
[42] Goodwin-Gill, above n 33, 307–8.
[43] The constraints specified in the Refugees Convention art 32 are additional to the non-refoulement obligation imposed by art 33: Sir Elihu Lauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion (2001) [151] (prepared for the UNHCR).
[44] Ibid [159].
[45] Office of the United Nations High Commissioner for Human Rights, General Comment 29: States of Emergency (Article 4), 1950th mtg, UN Doc CCPR/C/21/Rev.1/Add.11 (2001).
[46] Goodwin-Gill suggests that the right to knowledge of the case against oneself is part of present-day concepts of ‘due process’: Goodwin-Gill, above n 33, 306–7.
[47] David Cole, ‘Secrecy, Guilt by Association, and the Terrorist Profile’ (2001) 15 Journal of Law and Religion 267, 277.
[48] Goodwin-Gill, above n 33, 306–7.
[49] The principle of proportionality is well-established in international human rights law. The United Nations High Commissioner for Human Rights proposed it as one of several criteria that states should apply to ensure compliance with international human rights standards in the implemention of Security Council Resolution 1373 (28 September 2001): Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, GA Res 48/141, UN ESCOR, 58th sess, Annex, UN Doc E/CN.4/2002/18 (2002). All sides of the Australian debate on the issue accept the applicability of the principle, though they do not agree on whether the principle has been correctly applied in practice.
[50] Oren Gross, ‘The Normless and Exceptionless Exception: Carl Schmitt’s Theory of Emergency Powers and the “Norm–Exception” Dichotomy’ (2000) 21 Cardozo Law Review 1825, 1856.
[51] Carl Schmitt, The Concept of the Political (George Schwab trans, first published 1932, 1976 ed) 46 [trans of: Der Begriff des Politischen].
[52] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans, first published 1922, 1985 ed) 6 [trans of: Politische Theologie: Vier Kapitel zur Lehre von der Souveranitat].
[53] ‘There exists no norm that is applicable to chaos’: ibid 13.
[54] Ibid 14.
[55] According to Schmitt, ‘[t]he specific political distinction to which political actions and motives can be reduced is that between friend and enemy’: Schmitt, The Concept of the Political, above n 51, 26. ‘[T]he most extreme consequence of the political grouping of friend and enemy’ is ‘real combat’: at 35. The political enemy is ‘in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible’: at 27. However, this does not preclude the enemy being a ‘domestic enemy’: at 46.
[56] Gross, above n 50, 1841 (emphasis added) (citations omitted).
[57] Ibid 1845.
[58] This word is used advisedly. For example, originally many of the proposed ‘terrorism’ offences were absolute or strict liability offences punishable by 25 years to life imprisonment.
[59] Daryl Williams, ‘Opening Address’ (Paper presented at Globalising Terror, Political Violence in the New Millennium Conference, Hobart, 8 May 2002) <http://law.gov.au/ministers/
attorney-general/articles/globalterror.html> at 1 July 2002.
[60] The following are just three of many possible examples. During the First World War, Australia interned approximately 700 naturalised and 70 Australian-born British subjects of German ethnicity, very often ‘for no good reason’: Gerhard Fischer, Enemy Aliens: Internment and the Home Front Experience in Australia 1914–1920 (1989) 77, 86–126. During the Second World War, Australia interned 947 naturalised and 62 Australian-born British subjects of Italian ethnicity because of ‘attitudes which equated race with nationality and which regarded assimilation as a necessary precondition to citizenship’: Ilma Martinuzzi O’Brien, ‘The Internment of Australian Born and Naturalised British Subjects of Italian Origin’ in Richard Bosworth and Romano Ugolini (eds), War, Internment and Mass Migration: The Italo-Australian Experience 1940–1990 (1992) 89, 92–3. In 1951, Australia came to the brink of denying substantive and procedural rights to persons labelled as communists: see Elsa Atkin and Brett Evans (eds), Seeing Red ― The Communist Party Dissolution Act and Referendum 1951: Lessons for Constitutional Reform (1992).
[61] Attributed to Pastor Martin Niemoeller (a Dutch victim of the Nazis), cited in Margaret Piper, ‘Australia’s Refugee Policy’ (2000) 12 The Sydney Papers 79, 87.
[62] Migration Act 1958 (Cth) s 500(4).
[64] Section 500(1). Pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) s 43, the AAT is able to affirm, vary, or set aside a decision and in the last case either remit the matter for reconsideration or substitute its own decision. If the primary decision-maker’s refusal also relied upon the application to the facts of art 1A(2) or art 33(1) of the Refugees Convention or some other ground not within the jurisdiction of the AAT, the AAT upon making a finding favourable to the applicant on those matters within its jurisdiction would have to remit the case to the primary decision-maker. The other grounds of review would then have to be taken to the RRT: Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107.
[65] Director General, Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334, 338; Kaddari v Minister for Immigration and Multicultural Affairs [2000] FCA 659; (2000) 98 FCR 597, 601.
[66] Kaddari v Minister for Immigration and Multicultural Affairs [2000] FCA 659; (2000) 98 FCR 597, 602.
[67] See, eg, R v Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598.
[68] Migration Act 1958 (Cth) ss 475A, 483, 483A, 484.
[69] All the case law discussed in this article relates to applications for judicial review not caught by the privative clause provisions because they were lodged before the 1 October 2001 commencement date of the provisions: see generally Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) s 8.
[70] Migration Act 1958 (Cth) s 417.
[71] Section 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.
[72] DIMIA, Migration Series Instruction 225: Ministerial Guidelines for the Identification of Unique or Exceptional Cases where It May Be in the Public Interest to Substitute a More Favourable Decision under s 345, 351, 391, 417, 454 of the Migration Act 1958 (1999) [4.2.2], [4.2.4].
[73] Evidence to Senate Legal and Constitutional References Committee, Parliament of Australia, Canberra, 21 September 2001, 15 (Jennifer Bedlington, First Assistant Secretary, Refugee and Humanitarian Division, Department of Immigration and Multicultural Affairs). This extension of the guidelines had not, in fact, occurred as at 1 August 2002.
[74] The details of ASIO’s security assessment procedures are classified and cannot be accessed through freedom of information legislation: see below n 88.
[75] DIMIA, Procedures Advice Manual 3: SCH4/4002 [11.1.4]; Commonwealth, Parliamentary Debates, House of Representatives, 6 February 2001, 24 015 (Philip Ruddock, Minister for Immigration and Multicultural Affairs).
[76] DIMIA, Procedures Advice Manual 3: SCH4/4002 [10.1.3]. See also Director General, Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334.
[77] Taylor, ‘Reconciling Australia’s International Protection Obligations’, above n 36, 134.
[78] Director General, Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334, 335.
[79] Ibid.
[80] Ibid 339.
[81] IGIS, Annual Report 1999–00 (2000) [155].
[82] Ibid [157].
[83] Ibid [159].
[84] Ibid [155], [163].
[85] Commonwealth, Parliamentary Debates, House of Representatives, 6 February 2001, 24 015 (Philip Ruddock, Minister for Immigration and Multicultural Affairs). The making of a fresh application would otherwise have been barred by the Migration Act 1958 (Cth) s 48B.
[86] IGIS, Annual Report 1999–00, above n 81, [155].
[87] Ibid [163].
[88] ASIO and the IGIS are exempt from the operation of the Freedom of Information Act 1982 (Cth) and other Commonwealth agencies are exempt from the operation of the Act ‘in relation to a document that has originated with, or has been received from’ ASIO or the IGIS: Freedom of Information Act 1982 (Cth) s 7(2A), sch 2, pt 1.
[89] Section 37(2) does not apply to security assessments unless made in respect of a person who is an Australian citizen, an Australian permanent resident or a special purpose or special category visa holder: s 36.
[90] ‘Adverse security assessment’ and ‘qualified security assessment’ are defined in s 35.
[91] Section 38(2)(b). If the Attorney-General has so certified, the AAT conducting the review of the security assessment under the Administrative Appeals Tribunal Act 1975 (Cth) s 39A is prevented from making disclosure of the document to the applicant: s 39B. If the AAT decision is appealed to the Federal Court of Australia under the Administrative Appeals Tribunal Act 1975 (Cth) s 44, the Federal Court is likewise prevented from making disclosure of the document: s 46.
[92] Inspector-General of Intelligence and Security Act 1986 (Cth) s 8(1)(a).
[94] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, 19 April 2002, 168 (Dennis Richardson, ASIO Director-General).
[95] Section s 22.
[97] IGIS, Annual Report 1998–99 (1999) [85].
[98] Ibid [88].
[99] Ibid [89].
[100] Ibid. This review is available under the Administrative Appeals Tribunal Act 1975 (Cth) s 39A.
[101] IGIS, Annual Report 1998–99, above n 97, [90].
[102] IGIS, Annual Report 1999–00, above n 81, [45]–[46].
[103] Megan Saunders, ‘Fast Track for Suspect Refugees’, The Weekend Australian (Sydney),
8–9 December 2001, 7.
[104] Michel Gabauden (Regional Representative UNHCR), ‘Asylum Considerations after 11 September 2001’ (Speech delivered at the Refugee Convention ‘Where to from Here?’ Conference, Sydney, 8 December 2001); Saunders, above n 103, 7.
[106] Cole, above n 47. Cole provides many examples drawn from his own experience in representing clients from whom information had been withheld by US authorities on what later proved to be spurious national security grounds.
[107] To the extent that judicial review of protection visa decisions continues to be available, it would be ‘the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld’: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38. See also Haj-Ismail v Madigan [1982] FCA 231; (1982) 45 ALR 379, 386; Salemi v Holding (1988) 16 ALD 697.
[108] Public interest criterion 4001 requires that either:
(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
- 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.
Migration Regulations 1994 (Cth) sch 4, pt 1.
[109] Department of Immigration and Multicultural Affairs, Migration Series Instruction 254 ― The Character Requirement: Visa Refusal and Cancellation under Section 501 (1999)
[6.2.2]–[6.2.4] (‘MSI 254’).
[110] Migration Act 1958 (Cth) s 500(5).
[112] Department of Immigration and Multicultural Affairs, MSI 254, above n 109, [4.1.1].
[113] Ibid.
[114] See, eg, Migration Act 1958 (Cth) ss 501(6)(b), (c)(ii), (d)(v).
[115] Section 51A provides that the subdivision is ‘an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’ It was inserted into the Migration Act 1958 (Cth) by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) to prevent courts from finding that the Code of Procedure does not exclude common law natural justice requirements. This was the finding made in the High Court’s decision in Re Minister for Imigration and Multicultural Affiars; Ex parte Miah (2001) 179 ALR 238.
[116] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, 9 April 2002, 41 (Andrew Bartlett, Senator for Qld), citing the Law Institute of Victoria’s submission to the Committee; Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, 9 April 2002, 46 (David Manne, Co-ordinator of the Refugee and Immigration Legal Centre).
[117] Migration Act 1958 (Cth) s 63(2).
[119] Section s 5.
[122] Commonwealth of Australia Gazette: Government Notice 23 (9 June 1999) 1640. In NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCA 292; FCAFC 64 (Unreported, Spender, Gyles and Conti JJ, 20 March 2002), the Full Federal Court questioned whether this Gazette Notice sufficiently ‘specified’ gazetted agencies to be considered a valid specification for the purposes of Migration Act 1958 (Cth) s 503A(9). However, it found it unnecessary to express a concluded view on the matter for the purposes of the case and therefore refrained from doing so.
[123] [2002] FCA 292 (Unreported, Spender, Gyles and Conti JJ, 20 March 2002).
[125] Migration Act 1958 (Cth) ss 501(5), 501A(4).
[126] Sections 501C(2)–(3), 503A.
[127] Migration Act 1958 (Cth) s 501C(3), (10); Migration Regulations 1994 (Cth) reg 2.52(7).
[128] Migration Act 1958 (Cth) s 501C(4)–(5).
[129] Section s 500(6B).
[130] See Hall and Minister for Immigration and Multicultural Affairs [1999] AATA 794 (Unreported, Deputy President McDonald, 22 October 1999), rev’d on other grounds [2000] FCA 415; (2000) 97 FCR 387.
[131] Typical provisions are the Administrative Appeals Tribunal Act 1975 (Cth) s 29 and the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11 which give the AAT and the Federal Court respectively the power to extend the time allowed for the making of an application for review under those Acts.
[132] Many asylum-seekers are not able to read the English language. However, in Nguyen v Refugee Review Tribunal [1997] FCA 293; (1997) 74 FCR 311, the Full Federal Court dismissed the argument that the requirement of ‘notification’ means that recipient must have knowledge of the contents of the notice. It held that translation into a language understood by the recipient was not a prerequisite for notification of a primary decision to be effective.
[133] Migration Act 1958 (Cth) s 500(6L).
[134] Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378, 391 (Gray J).
[135] See Re Chan and Minister for Immigration and Multicultural Affairs [2001] AATA 487; (2001) 33 AAR 191 for an example of nondisclosure to the AAT of protected information.
[136] Migration Act 1958 (Cth) s 503A(5).
[138] See Part IV(B) above.
[139] The Migration Regulations 1994 (Cth) should also be amended so that public interest criterion 4001 is no longer a requirement for the grant of a protection visa additional to that of being a person to whom Australia has international protection obligations.