The civil war was long and bloody but its over now and frankly there is nothing to be gained by Tamils in Sri Lanka with the whining along the lines of this article.

The past is gone and the future beckon

The Permanent Peoples' Tribunal is an international tribunal, independent of state authority in order to examine violations of human rights. It was founded in 1979 in Bologna, Italy, and now has a permanent secretariat in Rome, but has no real standing on the world stage. It consists of many Politically Correct, Anti American, Do Gooders who complain about everything.

If the Tamil Tigers didn't attack the Government with such ferocity then the Singhalese Government would have had to clean them up. The Tamil Tigers did far more damage to innocent Civilians over the years than the Singhalese did when the finished the War.

As for being Economic Refugees they admit that themselves.

Bruce Haigh is the one with his own view of the world: an anarchic one which fuels his constant ranting against his own country. And, while Julie Bishop makes some people want to slap her face every time she appears, she is our Foreign Minister, elected to have a view and take actions on behalf of our country. “..four eminent Israeli lawyers, including a former attorney-general” have no say in our politics; nor do they have any say in their own politics –certainly not when it comes to Jewish settlements on “Palestinian territory” apparently. And, fortunately for all, Bruce doesn’t have any say in our government, except for the one vote we all get.

If sending back what our government deems as economic migrants (with the encouragement of Sri Lanka) is “an illegal enterprise under Australian and international law”, why hasn’t action been brought against Australia? Bruce Haigh talks through his hat and thinks that people are going to believe everything he says.

No matter what he believes about the Australian government’s attitude to Tamils, there is no requirement for Australia, or any other country, to take in anyone arriving by boat. Tamils, other Sri Lankans, should work out their own problems; if they can’t, it is not and never will be Australia’s responsibility to do it for them.
And another thing: Bruce’s ‘expert witnessing’ is a real bore, just like his non-stop lecturing. John Pilger, without leaving the country.

From what I can gather, the Permanent People's tribunal is a self appointed collection of retired old farts that have no powers to interview witnesses, collect evidence, or to do any thing other than chat to a few disgruntled "victims"

Their verdicts are unsubstantiated and carry no more legal weight than that of the local knitting circle.

Thank you Bruce for this article, although as is obvious from the first three comments the points you make will largely fall on ignorant eyes.

One theme that emerges frequently in comments on articles such as yours is that successive Australian governments have no international obligations beyond a self-defined national interest.

Governments, like the majority of commenters, ignore the fact that we have signed and ratified the International Convention on Refugees, in fact did so 50 years ago. If we wish to ignore international law as set out in the Convention and confirmed in a number of Court decisions, the honourable thing to do is withdraw from theConvention. To continue membership but act directly contrary to the obligations thus imposed, is the height of hypocrisy.

One should note be surprised that Carr and Bishop sing from the same song sheet. A Coalition government took us into illegal wars in Afghanistan and Iraq. Labor had the opportunity to have a public inquiry along the lines of the Chilcott Inquiry in the UK but did nothing. In fact Gillard's first public pronouncement on foreign policy after the coup against Rudd was to affirm (a) the American alliance; (b) the "mission" in Afghanistan; and (c ) support for the State of Israel.

Australia's voting pattern in the UN on Israel/Palestine questions since the change of government last September (and Abbott/Bishop/Morrison public statements on issues such as Israeli settlements, torture and sovereignty of other nations) confirms that Australia is the one that is out of step with world opinion.

The treatment of Tamil refugees (and other groups including children in its detention centres) merely confirm that we are in a very real sense an outlaw nation that has lost not only any notion of accountability for the commission of war crimes, but has also lost its former commitment to international law and even standards of common justice and humanity.

There's no such thing as genocide, it's a faudulent concept invented by Jewish activists to bolster their case for extracting billions of dollars in war reparations from the WW2 Axis powers.
Anyone can claim Genocide under the terms set out by the U.N, it's too broad a description to be of any real use.

James O'Neill,

I bet that you like most of the other left whingers on this site have never even read the UNHCR charter. If you had you would realise that:

1 the charter covers those fleeing war and persecution, not those seeking a better life style.
2 the charter covers only refugees that have landed on Australian soil and is silent on interceptions on the high seas.
3 the charter allows for detention until the refugee status has been determined.
4 once the asylum seeker has been determined to be genuine, he is to be given refuge, permanent residence is not required, nor is the acceptance of his immediate family.

So where is the coalition not complying?

@Shadow Minister.

You would lose your bet insofar as my reading of the Charter is concerned. I cannot speak for others, Left, Whingers (sic) or otherwise. To answer your points seriatim:

1. Agreed, but those fleeing Iraq, Afghanistan, Sri Lanka and elsewhere are doing so precisely because of persecution, threats to their lives etc. Australia played no small role in creating those push factors in the first place.

2. Not true.

3. It goes further than that. The status is to be determined by an independent properly constituted tribunal with a right of appeal. We manifestly do not do that. Our detention of children is also outside the limits of our international obligations of which the Refugee Convention is only one instrument.

4. Partially true, but one of the main points is that the mechanism to determine status used in Australia is outside the Convention. If it falls at the first hurdle the rest is meaningless.

As to your final question: just about in every respect.

the nation is waiting to hear from the PM what those circumstances would be that would ever justify torture.

Actually,war in a country is not an excuse for seeking asylum. There has to be a real fear of danger to AN INDIVIDUAL before he or she complies with the Convention. Nobody appears to be reading the Convention; Left or Right.

Shoude: the nation is waiting to hear from the PM what those circumstances would be that would ever justify torture.

If you are referring to the burnt hands claim, either you haven't been reading the Papers, watching the News on TV or you just plain don't want to acknowledge what really happened.

Come back, come back from wherever you are.

Jo'N: my reading of the Charter is concerned.

You interpretation of the UNCHR is faulty. Read Article 31a. It says Coming directly from harm.

Jo'N: Australia played no small role in creating those push factors in the first place.

Wrong. Refugees were coming out of the ME long before any Allied Wars took place. You're probably to young to remember or don't want to.

SM: 2. the charter covers only refugees that have landed on Australian soil and is silent on interceptions on the high seas.

Wrong again. Show us, Page, Para, Sub-Para, Where is says Refugees have to be taken to Australia or any other safe haven when intercepted on the High Seas.

Jo'N: The status is to be determined by an independent properly constituted tribunal with a right of appeal. We manifestly do not do that. Our detention of children is also outside the limits of our international obligations of which the Refugee Convention is only one instrument.

See Article 12, Para 1. also Article 16, Para's I,2, & 3. It does mention Habitual residence. Meaning let out of the Detention Centre not while in the Detention Centre.

Jo'N: but one of the main points is that the mechanism to determine status used in Australia is outside the Convention.

No it isn't. Just because you don't agree with it doesn't make it so.

SM: So where is the coalition not complying? Jo'N: As to your final question: just about in every respect.

That is your opinion & you're wrong.

You should really get someone to help you with legal Interpretation. Remember the UNCHR is a Convention& Protocol, It is voluntary. It is not an enforceable Law.

You are dead right Bruce-judging by the almost
overwhelming push-back this matter is very
inconvenient.

So what's stopping Sri Lankan Tamils, who want to leave, crossing the narrow strait to India where many millions of fellow Tamils live?

The economy of the Indian state of Tamil Nadu is growing rapidly.

Haigh incorrectly seems to argue that Australia is the only option for Sri Lankan Tamils.

James O'Neill

I was not questioning what should be in the UNHCR charter, or what your interpretation is, but what is written in black and white.

1. Agreed, we have no obligation to shelter economic refugees.

2. There is no clause in the charter dealing with refugees not within the territory of Australia. If you disagree, feel free to point out where it is included.

An excerpt "The Contracting States shall accord to refugees within their territories...."

3. Actually we have a tribunal with the right of appeal which is independent. As you say the obligations towards children lie outside of this charter.

4. As above this applies.

As I have shown above, we comply with the charter.

James O'N:
while I am sympathetic to your argument, I don't think you're right as to points 2. and 3. Can you cite authority in the Refugees Convention for what you're saying?

SM
Obviously the Refugee Review Tribunal is not independent of the Immigration Minister, on whose grace and favour the continuance of a member's contract depends.

For example I once had an RRT member approach me privately to disclose, in the hope that I would make public, directions from the Minister to members as to how particular cases were to be handled. The member was unwilling to go public herself because of fear of repercussions from the Minister. In other words:
a) it's not true that the RRT is "independent", and
b) it's a false and misleading misrepresentation which is constantly repeated.

Secondly, everyone is agreed that Australia's obligations extend to accepting refugees who apply onshore, and not to people who merely aspire to a better life.

But
1. most of the people in the world, including most refugee applicants, come from countries worse off than Australia. Therefore the fact that they may improve their economic lot by coming here, doesn't mean they are not refugees. It's a false dichotomy.
2. Since the refugee determination process is specifically set up to distinguish refugees from non-refugees, obviously there can be no objection to people applying for refugee status on the ground that they are "economic migrants" because the latter doesn't rule out the former, and
3. obviously it is unfair and prejudicial for Carr and his fellow d!ckheads to declare in the abstract that entire categories of people defined by race or nationality are *not* refugees when
a) how would he know? Does he know their cases?
b) they're running away from a country with a long and atrocious record of human rights abuses based on exactly the racial and national criteria in issue, and
c) if Carr was right, then no RRT decision would ever favour a Sri Lankan, would it?
Which is bigotted nonsense. Sri Lankan reffos are legion - for good reason!

JkJ: 2. Since the refugee determination process is specifically set up to distinguish refugees from non-refugees, obviously there can be no objection to people applying for refugee status on the ground that they are "economic migrants" because the latter doesn't rule out the former.

convention and protocol relating to the status of refugees

Article 1,
F. 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;

Article 31
refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, "coming directly from a territory where their life or freedom was threatened in the sense of article 1," enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Article 35
co-operation of the national authorities with the united nations
2. In order to enable the Office of the High Commissioner or any other
agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:
(a) The condition of refugees,
(b) The implementation of this Convention, and;
(c) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.

Article 44
denunciation
1. Any Contracting State may denounce this Convention at any time by a
notification addressed to the Secretary-General of the United Nations.
2. Such denunciation shall take effect for the Contracting State concerned one year from the date upon which it is received by the Secretary-General of the United Nations.

Cont

JKJ,

Your claims that the refugee review tribunal is not independent does not stack up, as a statutory body whose members are largely judges, who are appointed for terms of up to 7 years, the prospect for government interference is somewhat fanciful.

a) As refugee status can only be given to those fleeing persecution or conflict, economic migrants can be put on a plane and flown back to their country of origin.
b) The war in Sri Lanka is now over. Simply being Tamil is not a reason for refugee status.

SM

They're not largely judges and the two I knew personally didn't have a law degree. They had arts degrees and weren't even qualified social workers (which isn't saying much LOL).

As RRT member are getting paid above the market rate for their work (the *market* rate for judging refugee cases being very low), therefore they have an interest in the continuance of their contracts, and are not independent.

If what you were saying was correct, we could put High Court judges on temporary contracts renewable at the discretion of the executive government, and claim they're "independent".

"a) As refugee status can only be given to those fleeing persecution or conflict, economic migrants can be put on a plane and flown back to their country of origin."

(You mean non-refugee economic migrants. Refugee economic migrants can't be sent back.)

Yes that's true, but the point is, they can't be known to be refugees or non-refugees unless and until someone has heard their claims, can they?

"b) The war in Sri Lanka is now over. Simply being Tamil is not a reason for refugee status."

No-one's saying simply being a Tamil is a reason for refugee status.

But if a Tamil has well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, etc. then he is a refugee in fact and in law, notwithstanding
a) what Bob Carr thinks or says,
b) the fact that the war is over, or
c) anything about his economic aspirations.

Whether he does have well-founded fear for a Convention reason is the issue. It cannot be determined in the abstract by Bob Carr's pontifications presuming everything that's in issue. If he was right, then all the RRT Tamil cases would be rejections, which they aren't.

Under the Convention, as interpreted by Australian courts, the definition of a refugee can include a mere real chance of being persecuted (i.e. “might be” not “will be” or “would be”). This definition is so wide that it includes huge numbers of people in the world – probably more than the population of Australia.

And persecution can include being tortured or physically mistreated in police custody without charge or trial. This kind of behaviour is in fact common in many countries. It is still common in Sri Lanka. So are habitual suspicion and hostility towards Tamils by security personnel, after the long war and decades of the habit of abuses and impunity. These entrenched racial hatreds and abuses of power can't be made to go away by the blandishments of comfortable Australians.

If the Australian government doesn't want the obligations of the Convention, it should withdraw, not endlessly and dishonestly try to squirm out of it, which has been both parties' tacit policy for at least the last 20 years.

JKJ,

There are a number of judges (not largely that was incorrect information i read) but judges are paid salaries whether they work on the RRT or not, and are not known for remaining silent if their independence is being infringed upon.

As for the rest of the members, none are on short term contracts, and are unlikely to feel vulnerable unless in the last year, and any whiff of government interference in the press would make things very difficult for the government.

So far there are no reports of interference, and I find your claims somewhat unbelievable.

Refugees whether from Sri Lanka, the UK or wherever, have to show that there is a real probability that they will be persecuted. That persecution has occurred to a few individuals is not sufficient which is why plane loads of Sri Lankans have been sent back.

PS. the term "economic refugee" is PC for bludger looking for a new life style to which he would like to become accustomed.

Cont. Sorry yesterday I Went over the limit.

Schedule

Para 9, 2, The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.

Protocol relating to the Status of Refugees THE GENERAL ASSEMBLY,
considering that the Convention relating to the Status of Refugees, signed at Geneva on 28 July 1951(1), covers only those persons who have become refugeesas a result of events occurring before 1 January 1951, considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,

UNCHR Handbook

PART ONE – Criteria for the Determination of Refugee Status

CHAPTER II – INCLUSION CLAUSES
A. Definitions
(f) Economic migrants distinguished from refugees

62. A migrant is a person who, for reasons other than those contained in the definition, voluntarily leaves his country in order to take up residence elsewhere. He may be moved by the desire for change or adventure, or by family or other reasons of a personal nature. If he is moved exclusively by economic considerations, he is an economic migrant and not a refugee.

There we have it JKJ now you know. Let's not have any more of what should be in there.

The UNCHR Handbook is there to help you understand the Convention & Protocols. Remember the UNCHR C & P is just that a Convention & a Protocol. It's a bit like when they have a Royal Commission & It puts out a list of Recommendations which, as you know everybody ignores. The bodies that ignore the Recommendations don't get prosecuted.

Jayb
I know what's in the Convention, I have argued cases all the way from the Department to the Full Federal Court on it.

Nothing of what you cited has disproved anything I said.

"Remember the UNCHR C & P is just that a Convention & a Protocol. It's a bit like when they have a Royal Commission & It puts out a list of Recommendations which, as you know everybody ignores."

Not correct. The Parliament has incorporated the Convention definition of refugee into the Migration Act as a criterion for the grant of a protection (refugee) visa.

"The bodies that ignore the Recommendations don't get prosecuted."

The Migration Act is not a "recommendation" to the officers administering it.

It's the law. Executive officers, including the Minister, are subject to the courts' supervisory jurisdiction. Government officers as a matter of course obey the courts' declarations and orders. But if they don't, they can be jailed forthwith for contempt. It won't even go to a prosecution. Their badge of office will be no defence.

It's called the rule of law. Good, isn't it?

If what you were saying were correct, compliance with the Migration Act would be purely optional. Remember the 'Malaysian option' case (High Court - whether gumment has authority to transfer processing responsibilities to Malaysia)? Or the Tampa case (High Court- whether habeus corpus goes to release 433 Afghan reffos taken from high seas by Tampa into Australian waters)?

If you were right, these cases wouldn't exist - in fact the entire refugee caseload of the federal courts wouldn't exist, because no issue of law would ever arise between the refugee applicant and the Commonwealth.

JKJ. You would find an article by Professor Donald Rothwell in the Australian 10 July 2012 of relevance and interest. In the circumstances we are now discussing Articles 1 and 33 of the Convention are of particular note. Refoulment is specifically forbidden in not only the ?Convention, but also in Article 3 of the 1984 Convention Against Torture and in the 2006 Convention for the Protection of all Persons from Enforced Disappearance. Australia has also ratified both those conventions.

The European court of Human Rights in Hirsi Jamaa & Others v Italy (22 February 2012) is also helpful reading as it dealt with the obligations of States parties when refugees are intercepted on the high seas. Australia will not fare well when the actions of the current government are considered by the Courts.

As to the determination of claims for refugee status the UN High Commission for Refugees handbook (1992) the International Law Association (2002) and the International Criminal Court in the Sadio Diallo case (2010) have all pointed out, certain features are essential. For present purposes it is sufficient to point out that procedural guarantees are not limited to the lands and maritime territory of a State but also to the high seas.

"Turning back the boats" is worse than a political slogan. It is a breach of international law. The right to lodge a claim exists irrespective of how the refugees arrive or attempt to arrive. As I pointed out in an earlier post, Australia is operating outside the law and its international obligations therein. I for one do not regard that as acceptable.

JkJ: The Parliament has incorporated the Convention definition of refugee into the Migration Act as a criterion for the grant of a protection (refugee) visa.

I can't find it at the moment, It should be around 176. Please supply Part, Div Paras.

If it is exactly the same as the Convention (1951) then UNCHR Art. 33a Applies, Also look at;

UNCHR Handbook. PART ONE. CHAPTER II – INCLUSION CLAUSES. A. Definitions (f) 62. A (Above)

JKJ: I have argued cases all the way from the Department to the Full Federal Court on it.

If you're a Barrister you can't be a very good one if you can't interpret Law properly.

Jayb:

“If you're a Barrister you can't be a very good one if you can't interpret Law properly.”

Nothing you’ve said or shown has established that I have not interpreted law properly.

“Criteria to be satisfied at time of decision
The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”
“Refugees Convention means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.”

“Please supply Part, Div Paras.”

No. Keep looking.

Let’s cut to the chase. What specifically are you saying I have got wrong?

“If it is exactly the same as the Convention (1951) then UNCHR Art. 33a Applies”

Article 33a is the non-refoulement clause, which is the main raison d’etre of the Convention. It says:
“No Contracting State 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.”

It doesn’t say:
• you can’t kick ‘em out,
• you must let ‘em in,
• you can’t turn ‘em back on the high seas.

It says you can’t *send them back across the borders of their own country*. And “refugees” means *after* their applications has been determined, not before.

Australia is not refouling refugees nor advocating it, and neither am I, so what’s your point?

“Also look at UNCHR Handbook. PART ONE. CHAPTER II – INCLUSION CLAUSES. A. Definitions (f) 62. A (Above)”

“Economic migrant” is not a legal term. The UNHCR Handbook was it to mean a migrant motivated by hope of a better life ONLY AND EXCLUDING one who is also a refugee.

I was using the term “economic migrant” above to mean someone motivated by hope of a better life INCLUDING one who is also a refugee – which is the great majority of refugees.

Semantic differences apart, there is no issue in Australian or international refugee law or my opinion that: ...
(cont.)

1. Refugees are entitled to non-refoulement under the Convention. Whether they also aspire to a better life by migrating is irrelevant; and
2. Non-refugees may be refouled.

James
Australia is not refouling anyone. If she were sending Afghans back to be Afghanistan*after* they had been determined to be refugees, *that* is what the Convention is proscribing.

Keeping asylum-seekers out is not refouling them because
a) we’re not sending them across the borders of their home country, and
b) they have not been determined to be refugees.

International law does not say a State can’t keep out non-citizens. It’s not in breach of the Convention. This sovereign power is indeed the basis of the law of nationality, which if the foundation of all international law.

No state affirms that a non-citizen has a right to enter without the state’s permission so as to to claim refugee status.

What is Article 1, I can’t find it? I can only find Preamble then Article 2.

“International law” is a moveable feast - invariably at others’ expense.

Australia is not subject to decisions of the European Court of anything, academic opinion, the Australian newspaper, the UNHCR, the self-styled International Law Association, or the International Criminal Court – and that’s the way it should be!

“The right to lodge a claim exists irrespective of how the refugees arrive or attempt to arrive.”

They have a right to lodge a claim offshore.

They don’t have a right to enter a country illegally for purposes of lodging a claim onshore, and the gumment has the right to stop them entering and to send them back *whether or not they would have been determined to be refugees if they had entered and lodged a claim*.

International law does not contradict this Australian law.

What is your authority for saying Australia is operating outside the law or her international obligations? Please start with Australian domestic law and any international obligations Australia has expressly undertaken, not what academics say foreign supra-national “courts” claim is other people’s obligations. I don’t accept that.

I just don’t think your legal argument is right.

Your definition of refouling is WRONG.
Article 33a is the non-refoulement clause, which is the main raison d’etre of the Convention. It says:
“No Contracting State 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.”

Returning people to another country, OTHER than the Country where his life or freedom would be threatened is NOT against the Convention or Protocol. I.e. back to a refugee camp in Pakistan if they escaped from Afghanistan or their last place of embarkation. I.e. Indonesia.

In the case of coming in by plane, etc, The immigration Authorities just sends an illegal entry back to the place of embarkation. They are not on Australian soil until they clear Customs & that's legal.

They have been granted legal status in an accepting Country then they return to the Country they supposedly escaped from because their lives are in danger, be it to fight, collect their family or work for a "Charity?" whatever is illegal & they lose their status immediately.

Australia, under the Migration Act can refuse a Visa to anyone it wants to anyway & often does, sick, no money, no skill are all valid reasons.
Cont.

UNCHR
CHAPTER I: General Provisions
Article 1
definition of the term “refugee”
A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
1 & 2.

B:1a & b.
B& 2. Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary-General of the United Nations.

C. This Convention shall CEASE to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it, or
(3) He has acquired a new nationality, and enjoys the protection of the
country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

JKJ: I was using the term “economic migrant” above to mean someone motivated by hope of a better life INCLUDING one who is also a refugee – which is the great majority of refugees.

Which then negates their Refugee Status. If a Refugee leaves a Country where he found safety then crosses multiple boarders where his life is NOT threatened looking for the best option then he ceases to be a refugee.
cont

However we are talking primarily about Sri Lanka Economic Refugees. They themselves have said that they are coming to Australia for a better life. They claim that they are being persecuted. If that were so then they would be in jail already. If they were Tamil Tigers then the majority of them are Criminals & therefore should be brought before the Criminal Courts. Crimes like blowing up buses or ferrys, cinemas', murdering & kidnapping people. These people can be returned to face justice.

So far in the Migration Act I can only find a referance to the UNCHR in the

Part 1 Preliminary. 5. Interpretation. Refregees Convention, Refugees Protocol.
36a Protection Visas.
2. A criterion for a protection visa is that the applicant for the visa is:
(a) 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
(2B) However, there is taken not to be a real risk that a non citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non citizen to relocate to an area of the country where there would not be a real risk that the non citizen will suffer significant harm; or

(3) Australia is taken not to have protection obligations to a non citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non citizen has a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

Jayb, I can't understand what you are saying I am wrong about. Can you boil it down into specific propositions that can be answered yes or no?

I am using the Convention definition of refoulement.

As for economic migrants, you're getting confused over semantics.

*If* someone has well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion *and* they desire to migrate in hopes of a better economic life, *then* they are a refugee. The fact they also hope for a better economic life does not disqualify them from being a refugee. It's completely irrelevant.

Do you disagree with that paragraph?

If you do, you're wrong. The UNHCR does not disagree with it.

Nor do I disagree that someone who wants a better life and does *not* have well-founded fear of being persecuted for a Convention reason, is not a refugee, and not immune from refoulement.

You have not shown that anything I have said is wrong, but if you have, then be clearer in identifying what it is.

James O'Neill,

You claim that ""Turning back the boats" is worse than a political slogan. It is a breach of international law."

Actually it is not a breach of international law. The law is very clear that any country is free to intercept boats in international waters en route to the country where there are indications that the intention is to breach the country's laws.

Interceptions and turnarounds of drug and people smuggler boats is a policy presently being used by several countries.

Shadow Minister. As you often do you are conflating separate issues which only serve to confuse the matter.

I refer you to my earlier post at 5.37pm on 12 February when I cited the case of Hirsi Jamaa & Others v Italy, a unanimous decision of the European Court of Human Rights (14 Judges). That case discusses precisely the point that has been raised by you and others.

JKJ is correct that the ECHR is not binding on Australian courts. But that is beside the point. It would require a powerful submission to an Australian Court that the ECHR decision was wrong and should not be followed here. I know which case I would rather be arguing.

James, are you saying that non-citizens without a visa have a "right" in international law to enter Australia so as to lodge a claim for protection?

You said that Australia is operating outside the law and international obligations, but which specifically?

JKJ

All persons intercepted on the high seas o elsewhere have the right to have their claim for asylum considered by a proper authority and with a right of appeal against an adverse decision. That is abundantly clear from the Convention to which we are a signatory and a significant body of case law that has built up.

Australia is stopping people on the high seas and turning them around. Even giving them a seaworthy boat to do so. Prima facie that is a breach of the Convention. It may sit well with some of the commenters above and others for whom "stopping the boats" satisfied their prejudices, but it is not in accordance with our international obligations.

JKJ: You have not shown that anything I have said is wrong, but if you have, then be clearer in identifying what it is.

Would this make it clearer.

Article 1 F of the 1951 Convention:

Refugee status is not granted to;

3) Persons considered not to be deserving of international protection

“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.”

This would apply to any person who was a member of the Tamil Tigers. Australia has a right/duty to return such people to SRI Lanka as they could or would pose a danger to the Australian Community & need to face a court in Sri Lanka.

JKJ: The fact they also hope for a better economic life does not disqualify them from being a refugee. Yes it does.

PART ONE – Criteria for the Determination of Refugee Status

CHAPTER I – GENERAL PRINCIPLES

Economic migrants distinguished from refugees

62.(f) A migrant is a person who, for reasons other than those contained in the definition, voluntarily leaves his country in order to take up residence elsewhere. He may be moved by the desire for change or adventure, or by family or other reasons of a personal nature. If he is moved exclusively by economic considerations, he is an economic migrant and not a refugee.

A person from the Local Village who just wants to earn money for his family back in Sri Lanka does not qualify as a refugee. It seems like 50% qualify for Article 1 F of the Convention & 50% qualify for Ch1. 62 (f) does it not?

Is that clearer?

James
That is abundantly clear from the Convention …”

No it’s not. I’ve asked you to cite authority and you repeatedly give only your unsupported pontifications.

Show us where it says that in the Convention or any international obligation that Australia has actually signed.

Jayb

“Is that clearer?”

It’s clearer that you’re confused.

Being a Tamil, of itself, doesn’t make one a Tamil Tiger.

And being a Tamil Tiger, of itself, doesn’t mean one has committed a war crime, or is otherwise excluded by Article 1 F.

One might have. But one might not. It’s a matter of fact for evidence in a particular case. You can’t just decide it in the abstract by making up percentages about whole groups. The Convention proceeds by assessing individual cases, not just making up facts adverse to entire racial groups.

“JKJ: The fact they ALSO hope for a better economic life does not disqualify them from being a refugee.”
[Jayb quoting the Convention:] “If he is moved EXCLUSIVELY by economic considerations, he is an economic migrant and not a refugee.”
(emphasis added).

Now can you identify your confusion? The Convention is talking about if they want to move for a better life AND THEY DON’T have refugee status. I’m talking about if they want to move for a better life AND THEY DO have refugee status. Factually different.

Your persistent confusion notwithstanding, what I’m saying is legally correct, and what you’re saying is wrong. If people have refugee status i.e. well-founded fear of being persecuted for a Convention reason, the fact that they would ALSO improve their lot by migrating, does NOT somehow deprive them of reFugee status as you are mistakenly repeating.

“A person from the Local Village who just wants to earn money for his family back in Sri Lanka does not qualify as a refugee.”

I never said he did. But you have no way of knowing that, without hearing his claims.

“ It seems like 50% qualify for Article 1 F of the Convention & 50% qualify for Ch1. 62 (f) does it not?”

Made-up facts.

I said: “It seems like 50% qualify for Article 1 F of the Convention & 50% qualify for Ch1. 62 (f) does it not?”

JKJ: Made-up facts.

Made-up facts.

Would this make it less pedantic. “It seems like MOST of Tamils Tigers would qualify for Article 1 F of the Convention & MOST of Sri Lankans would qualify for Ch1. 62 (f) does it not?”

The Tamil Tigers were a rag tag Civilian Militia. Not a duly constituted Army. They were vicious in the extreme to anyone that did not agree with them.

JKJ: I’m talking about if they want to move for a better life AND THEY DO have refugee status. Factually different.

I guess that's where you & I disagree. I don't believe that any Sri Lankans qualify for Ch1, 62(f). I don't see how they would qualify in any way.

I don't believe that any Tamil Tigers qualify because of Article 1 F.

They were all very indoctrinated fanatics hell bent on getting their way. They would kill as many people as possible or die trying. which they did at every opportunity. It's very convenient to forget that fact after the peace is restored.

You sound like you would argue that Pol Pot & his Henchmen were just misunderstood good guys that would qualify for Asylum in Australia.

“Would this make it less pedantic. “It seems like MOST of Tamils Tigers would qualify for Article 1 F of the Convention & MOST of Sri Lankans would qualify for Ch1. 62 (f) does it not?”

That would make it less pedantic, and more probable – and would show that mine weren’t “made up facts”.

Do you know what’s called the “ecological fallacy”? If you put nine white marbles, and one red marble in a bag, and draw out one at random, it’s not going to be 90% white and 10% red, is it? That’s the ecological fallacy.

So here. The Convention doesn’t give refugee status to whole groups. It’s done on an individual basis. This means that even if your made-up statistics were true, it still wouldn’t mean the applicant in an individual case is or is not a refugee. You have to assess the facts; you can’t just make them up.

Also, just as you don’t know which Tamils are LTTE and which are not, the Sri Lankan security forces don’t know either. They fear and loathe them for the reasons you have given, and are motivated to treat all Tamil men of fighting age with suspicion. In practice, this often means that the young guy in the village who is *not* a Tiger, keeps receiving treatment from security forces, that comes within the Convention definition of persecution: such as:
• Repeated detention without charge or trial
• Repeated interrogation and physical mistreatment
• Arbitrary mistreatments that make it impossible to earn a living, such as taking their fishing licence.

Whether you like it or not, these mistreatments are common, and because the standard of proof is very low in refugee law, it means many Tamils come within the definition of refugee.

“I guess that's where you & I disagree. I don't believe that any Sri Lankans qualify for Ch1, 62(f). I don't see how they would qualify in any way.”

That’s called "sheer blind prejudice".

I have not argued that war criminals etc. should be accepted.

Therefore you still haven’t shown any error of mine.

James O'Neill,

Sorry to take so long to get back, but I read the judgement in question, and the main salient point about this judgement is that it was a EU court interpreting EU law affecting EU border protection. It has no bearing whatsoever on Australia.

This is completely aside from the fact that a handful of activist judges have tried to extend the EU jurisdiction outside of its borders.

The situation still stands that Operation Sovereign Borders does not violate any international law.

SM. We will just have to agree to disagree.

James O'Neill,

With all due respect, you claimed that Australia was breaking international laws with respect to the tow back policy, having a personal interest in the subject I have read the UNHCR charter and a few high level legal opinions on interceptions at sea, and have yet to find any judgement that definitively prohibits these interceptions and turnarounds.

I do not claim to be an authority on the subject, and I am willing to accept that I might be wrong. However, I need more than the assertion of another blogger.

So do you know that the tow backs are illegal or are you simply parroting an incorrect line spouted by activists?

SM: Is James simply parroting an incorrect line spouted by activists?

Yep, All activists do that with everything they're against. They make what they would like to be in various Conventions & Laws, etc, then espouse that to be the case. They twist the truth, much like all Politicians, to convince people of their aim. When found out, they still claim to hold the high moral ground, So that makes them right anyway. either that or they were misunderstood.

JKJ, a question. Do you believe that anyone coming to Australia by any means & claiming Asylum should be granted Asylum regardless? If no, could you tell, us. in what circumstances would you see a person rejected?

"Do you believe that anyone coming to Australia by any means & claiming Asylum should be granted Asylum regardless? If no, could you tell, us. in what circumstances would you see a person rejected?"

Jayb, are you asking my personal opinion, or my opinion of what the current law is?

As to current, the situation is that anyone who can get into the migration zone (mainland Australia for all intents and purposes), by any means - legal or illegal can claim, and if the application is granted, they will get a permanent visa. But it won't be "regardless". They will have to satosfiy both your objections:
1. case not meritorious (fisherman from grass hut in search of better life) i.e. not a refugee, and
2. excluded for war crimes etc. (refugee but excluded.)

As for my personal opinion, it depends what the policy settings are.

If Australia is on the Convention, I think it should withdraw. I think it's a huge and abusive waste for tokenistic reasons and ulterior purposes, like trying to give credibility to the UN. Withdrawing from the Convention would *in no way* reduce Australia's ability to accept refugees. It would enable governments to control the numbers and characteristics and conditions of who is accepted, just as they do for the non-refugee and onshore migration caseloads, which is what both parties have been trying to do by devious means, for example
a) signing onto the Convention, and then
b) writing legislation to try to exempt officials from complying with the law.

It would remove the need to accept boat people which is what both parties have been trying to achieve by all their exorbitant shenanigans with Manus, Christmas Is., and so on.

If we assume that, as at present, the costs can be externalized onto the rest of the community, who are forced to pay for the processing, accommodation, legals, social security, etc. etc. etc, then I think it's bad.

I think this policy area is the "unstoppable force meeting the immoveable object". People will never stop coming, and trying to escape sh!t countries, which are many, and having heard hundreds of cases, I can't say I blame them even if they don't satisfy the formal definition of refugee. I have no time for those who say just sink the boats or send people back to be beheaded. That is bullsh!t.

I would like to see a system where Australians can sponsor whoever they want, subject to character and security checks, but must indemnify the rest of the community against the costs and liabilities, including for sickness and crimes.

There would be nothing stopping groups like the RefugeeCouncil setting up funds for people to subscribe so much per month, which would all add up to a lot, if the w@ankers would only put their money where their mouth is. I would willingly sponsore people but of course government makes everyhting illegal, including employing them, etc.

The problem at the moment is you've got the hypocrites of the green left brigade, and the James O'Neills of the world making up non-existent "obligations" based on laws (and when caught out, claiming it's all just a matter of opinion) - and then forcing everyone else to pay for an insanely expensive dysfunctional system, so they can get their cheap thrills crawling up the arse of the United Nations! - real left wing stuff.

Came across an old email I got about July last year. Thinking about the riots on Naru

"Sorry it has taken so long to get back to you. As you may have heard the camp we have been constructing over the past 8 months has been burned to the ground. The riot and subsequent fire occurred on the evening of Friday the 19th since then we have constructed a temporary camp (tent city) for the detainees that are not banged up in the Nauru jail. The accommodation that was burned was of a very high standard and the dining facilities were second to none. These bastards were being fed better than us worker bees and living
accommodation better than the locals

Before I came here I was somewhat sympathetic toward refugees believing some were genuine. After the events of the 19th I am of the opinion that the group of male refugees here on Nauru are nothing more than violent arrogant criminals. The Iranians are no better than the Tamals or any other of the ethnic groups that we have here they are all the same. These people are the scum of the earth and should under no circumstance be permitted to live in Australia.

I have attached a before and after snaps of the accommodation buildings only, the rest of the damage is out of the shot."

JKJ: There would be nothing stopping groups like the Refugee Council setting up funds for people to subscribe so much per month, which would all add up to a lot, if the w@ankers would only put their money where their mouth is

But they won't there-in lies your problem. Most Australians don't want them here & of the one's that do very few have the money to cough up, being Greenie Ferals & all.

Settle down JKJ you'll bust a pooffulle Valve.

"But they won't there-in lies your problem. Most Australians don't want them here & of the one's that do very few have the money to cough up, being Greenie Ferals & all."

Well you've asked me my opintion, and I'm telling you. IF people were willing to sponsor them, I think they should be able to, and if not, not. It's not my problem. Mine is a good and fair solution. The problem is that the left wing, as usual, are full of bullsh!t as James O'Neill has just demonstrated. He doesn't care what the truth is. When caught out blatantly lying, he has the effrontery to claim everything's just a matter of opinion - i.e. there's no such thing as truth, or rather left wing opinion and truth are the same thing, even if it's factually, logically and ethically false.

But it cuts both ways. Just because people burn down tents when the government has detained them indefinitely without processing their claims on an island of birdsh!t in the middle of nowhere, deliberately to try to evade their obligations under the Convention, doesn't mean those people don't have well-founded fear of being persecuted for a Convention reason. It's completely illogical. Just because you don't want them to be here, doesn't mean they're not refugees. You're just doing what the left-wing bullsh!t-artists are doing - deciding what you want the end result to be, and then knowingly or illogically claiming that false things are true.

@JKJ I have tried to maintain a civilised dialogue about a fundamental issue. It is a great pity that you have descended to personal abuse based on your views about my alleged political beliefs. I have at all times tried to discuss the issues in terms of international law, and in particular Australia's responsibilities therein. I have maintained that Australia is in breach of its obligations under the 1951 Convention and the 1967 Protocol to the Convention, both ratified by Australia and therefore part of our domestic law. If that basic concept cannot be grasped by you and your fellow travellers then it is difficult to reach any common ground.

There have been a number of cases demonstrating that Australia's treatment of refugees breaches the Convention and Protocol. Bakhtiyari v Australia Case 1069/2002 and A v Australia Case 560/1993 are but two illustrations. The latter case in particular also dealt with Australia's breaches of Article 9 of the Convention on the Rights of the Child, another Convention we have ratified.

It may suit your prejudices to label views you do not agree with as "left wing bulls..t" etc. I prefer to rely on the law, which the last time I looked applied to people of all political persuasions.

You might also like to consider Doc ExCom No 8 of 1977 which deals with procedures for determining refugee status. Again it is manifestly obvious that Australia is in breach of its commitments.

It is not my job to teach you the fundamentals of international law. There are plenty of books on the topic if you really want to expand your knowledge. Given your resort to personal abuse however, I suspect that knowledge, facts, the law and other inconveniences do not feature prominently in your approach.

JO"N: tried to discuss the issues in terms of international law, and in particular Australia's responsibilities therein. I have maintained that Australia is in breach of its obligations under the 1951 Convention and the 1967 Protocol to the Convention, both ratified by Australia and therefore part of our domestic law.

I don't know how many times I have to say this.

The UNCHR Convention & Protocols are just that Conventions & Protocols. Not Laws. It does state that it is hoped that the signature States would adhere to the Convention & protocols but if we don't like some part of it we don't have to abide by it. We can pull out of it anytime we like with a years notice.

The only mention of the UNCHR C & P's in the Migration Act is a mention in the definitions. It does not state that the UNCHR C & P is an Australian Law.

Please try & stop trying to make out that it is. You are manipulating the truth. I guess you work on the old adage that if you say something enough people will believe it's true.

JON,

Either you are unfamiliar with the law, or you are deliberately ignorant.

Doc ExCom No 8 of 1977 contains a set of "recommendations" to which Australia has no obligation to comply.

Bakhtiyari v Australia Case 1069/2002 and A v Australia Case 560/1993 are more than a decade old, and are just about the only cases where the UNHRC differed from the Australian courts and immigration dept.

JayB & SM. You both seem to miss a fundamental point. Once a country ratifies a Convention (and in the Refugee case the Protocol) then the provisions of the convention/protocol becoming legally binding on the State Party that ratifies it.

One can, as has been noted, remove oneself from that obligation by giving notice and waiting the requisite period. Australia has not done that and has given no indication of any intention to do so. Unless and until it opts out of the Convention then it is legally binding.

Australia pretends to be a good international citizen but the reality is otherwise. The events on Manu Island this week are but another stark example. The High Commissioner for Refugees in Geneva has only yesterday publicly expressed concern over Australia's policies. Is he also a winging leftie?

JO'N: Once a country ratifies a Convention (and in the Refugee case the Protocol) then the provisions of the convention/protocol becoming legally binding on the State Party that ratifies it.

It is not a Law. It is not binding. If a country has issues with a part of the C & P then thy are not obliged to abide by that part.

Protocol relating to the Status of Refugees THE GENERAL ASSEMBLY,
considering that the Convention relating to the Status of Refugees, signed at
Geneva on 28 July 1951(1), covers only those persons who have become refugees
as a result of events occurring before 1 January 1951,

For a start. Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,
D.
“THE CONFERENCE,
28 United Nations Treaty Series, vol. 189, p. 37
“Considering that many persons still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position, “RECOMENDS that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement.”
E.
“THE CONFERENCE,
“EXPRESSES THE HOPE that the Convention relating to the Status of Refugees will have VALUE as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.”

Article 36
Information on national legislation
The Contracting States shall communicate to the Secretary-General of the United Nations the laws and regulations which they may adopt to ensure the application of this Convention.

The UNCHR C & P has to fall within Australian Migration Laws, of which we have advised the UN.

JayB: I am obviously not going to convince you of the error of your interpretations of the relevant provisions of international law. Can I therefore refer you to an article by Hugh Tuckfield in The Diplomat www.thediplomat.com published on 18 February 2014.

Perhaps after reading it you will accept that mine is not a lone voice in maintaining that Australia is in breach of its international obligations.

Mr Tuckfield has some other observations to make that I think confirm the stance I have taken in the course of these comments.

JO'N: the error of your interpretations of the relevant provisions of international law.

Once & for all. the UNCHR C & P, IS NOT a LAW. It is a Convention & a Protocol. Australia cannot be Prosecuted for not honouring it's commitment in full. There is no provision in the Convention or Protocol for prosecution.

I really don't care how many Left Wing, Politically Correct, do-gooder, whinging Greenies you can drag out of behind a tree. They're are not worth a pinch of $#!t.

My apologies in advance Graham.

J.O'n.

You didn't try to discuss the issue in terms of international law.

You gave your unqualified opinion that Australia is operating outside the law and its international obligations. When I asked you to cite authority you didn't, while still not resiling from what you couldn't defend. When I asked again, you still didn't supply any authority for your contention. Then when SM showed that what you were citing is not legally binding on Australia, you reply to the effect that everything's just a matter of opinion.

But it's not just a matter of opinion, that's the whole point. You're wrong. What you're saying is wrong, it's been repeatedly explained to you, and you won't give away a bad egg. You keep citing things which do *not* establish a legal obligation, as establishing a legal obligation.

There's every reason why you should be called on this technique, because if it's not intellectually dishonest, what is it? What do you call saying something that's not true, when you know it's not true, and it's been pointed out to you why it's not true, and you just keep saying it?

Has it ever occurred to you that when the Labor party sent people to Manus Island, they (Labor) knew they were lying to you about caring about the Convention? But according to you, by your own actions you prove, you think that's fine: it's okay to bullsh!t if you think you can manipulate people into doing what you want based on lies. How is that any different from what you've just tried on with us?

Jayb
The provisions of the Convention, of themselves, are not law. But they are law to the extent that the Australian Parliament has incorporated them into Australian law, which they have with the refugee definition.

JoN,

Australia legally has to abide by the terms of the UNHCR, however, some of the terms are open to interpretation such as "arbitrary" arrest and detention.

Arbitrary means:

"based on random choice or personal whim, rather than any reason or system. or unrestrained and autocratic in the use of authority." As the detention was clearly not whimsical, the judgement then falls to the appropriate use of authority.

As Australia does not acceed to the UNCHR the decisions are made by the Australian High court, and the UNCHR is at best a reference.

All
Why is it not a solution to your concerns for Australia to withdraw from the Convention?

JKJ: The provisions of the Convention, of themselves, are not law.

Aha, now we are getting somewhere.

JKJ: But they are law to the extent that the Australian Parliament has incorporated them into Australian law, which they have with the refugee definition.

Show me, Page, Para, Sub Para. Then I would consider believing you. Show me the penalties for not abiding by the C &P. Page, Para, Sub Para.

My bet, you cannot.

1.
How much do you bet?

I've already quoted above the exact quote from where it's part of Australian law. I just haven't cited it, because I told you to look it up yourself.

2.
But before you lose as much as you wager, just think about it for a sec. If it's not part of Australian law (and we are agreed that merely being in the Convention doesn't make it so), what do you think is the basis o which the federal courts hear refugee claims - it comprises a huge part of their caseload plus there have been numerous High Court cases on them.

According to your theory, you are right and the High Court is wrong?

JKJ: I've already quoted above the exact quote from where it's part of Australian law. I just haven't cited it,

No you haven't. I have been through every one of your Posts & there is nowhere where you quote Chapter, Page, Para, Sub Para. Body. Or anything from the Migration Act at all pertaining to this discussion. So I assume that you are one of the crowd that wishes it so, so you quote continual BS. The judge must have a good laugh when he sees you in his court.

So, once again.

Show me, Page, Para, Sub Para. Then I would consider believing you.

Show me the penalties in the Migration Act for not abiding by the C & P. Chapter, Page, Para, Sub Para.

You can't because there is none.

How much do you bet before I show you?

Come on Jayb, it's got to be enough to hurt for your impudence.

Since, according to you, there is no chance that you will lose the bet, how about you hand over the title deeds to your home to an agreed referee, and we'll get you to do a declaration of trust in my favour if I end up demonstrating that the Convention definition of refugee is incorporated into Australian statute law?

On the other hand, you could stop being so BONE LAZY, and just google the terms I cut and pasted from its source in Australian law.

Hush, I'm going through the Migration Act line by line.

So far I have found nothing like, "Australian Law incorporates the UNCHR C & P, fully, as part of "The Migration Act."" Which is what you are espousing.

I'm still on Part 1.

LOL, keep going.

Just think, though. If you're right, why are the federal courts, including the High Court, entertaining applications by asylum-seekers? Tampa? Malaysia solution? Chan's case? Plaintiff S157? Bodrudazza's case?

Here's a few samples:

Plaintiff M61
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2010/41.html?stem=0&synonyms=0&query=title(%222010%20HCA%2041%22)

S157's case:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2003/2.html?stem=0&synonyms=0&query=Plaintiff%20S157/2002

Aala's case:
http://www.austlii.edu.au/au/cases/cth/HCA/2000/57.html

Bhardwaj's case:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2002/11.html?stem=0&synonyms=0&query=title(bhardwaj%20)

First Case

Plaintiff M61/2010E v Commonwealth of Australia
Plaintiff M69 of 2010 v Commonwealth of Australia
Plaintiffs detained under s 189(3) of Migration Act – Each claimed Australia owed him protection obligations under Refugees Convention as amended by Refugees Protocol. Each plaintiff precluded from making valid visa application unless Minister decided in public interest to allow: s 46A of Migration Act .

Fair enough. That is correct so far.
Reviewers reasons
1. First, early in his statement of reasons, the reviewer said that:
"While this merits review is not bound by Australian law and is of a non-statutory nature, it is appropriate to have regard to Australian legislation and relevant case law as an aid to the interpretation of the Refugees Convention."

The RSA & the IMR are only investigative. They put forward their recommendations for notice to the Minister. That's all. They are not a Law.

plaintiff's adviser described the plaintiff's claims as having two bases. First, the adviser submitted that the plaintiff feared that, if he was returned to his country of nationality (Sri Lanka), he would suffer persecution or substantial discrimination amounting to a gross violation of human rights (or both) at the hands of Sri Lankan authorities or "pro-government paramilitary groups". (Brother a TT)

No mention of the UNCHR C & P being an integral part of the Migrations Act.

So if a person goes back as a failed Refugee & his Village gets up him & laughs at him & that considered "substantial discrimination" because he wouldn't be sending money back to the Village. Woopie Do.

"While this merits review is not bound by Australian law and is of a non-statutory nature..."

I think you'll find the Court held that was an error of law.

The RSA & the IMR are only investigative Guidelines. They put forward their recommendations for notice to the Minister. That's all. They are not a Law.

RSA: Refugee Status Assessment Procedures Manual. Is a book explaining the Procedures that must be followed at an interview by a Commonwealth Officer in examining a non-citizen for a Visa as per 46A of the Migrations Act. It's not a Law It's a Procedural Manual.

IMR: Guidelines for the Independent Merits Review of Refugee Status. Is a book explaining the Procedures to be followed by an Independent contractor person in examining a non-citizen for a Visa as per 46A of the Migrations Act. It's not a Law. It's a Guideline to follow for an Independent Contractor.

I think you'll find the Court held that was an error of law. I see that but I don't think it was an error in Law, more of an error in Procedure. I notice that the Independent Contractor wasn't charged with anything. So he didn't break any Law. It's only because he didn't follow the Guidelines to the letter in showing M61 the report on weather he would be laughed at when he got home.

Mind you, little Village people do take that sort of ridicule seriously but that is no excuse to grant him Asylum in Australia.

I find it strange that they get an interview (RSA)& if they don't like the outcome they get another Interview (IMR)& they don't like that they can get advice on what to say from Refugee Advisory Groups (Coaching) & go back to the RSA & on & on & on.

Look you won't have any difficulty persuading me that the whole system is crazy. I'm not defending it. I'm only saying that the Convention definition of refugee has been incorporated into Australian statute law by the Migration Act.

I think it's very commendable that your curiosity persists in trying to find out the truth from original sources, and refuses to take it on mere authority, although many people might have been satisfied from reflecting that the High Court is obviously satisfied on that point.

By the way, a law doesn't mean you'll be charged if you break it. Not every law is a criminal law: contract, negligence, nuisance, etc. in fact all of civil law, which includes the orders the High Court, and the federals courts, make in refugee cases.

JKJ and JayB. you two really ought to exchange email addresses!

I think that both of you are misconstruing what is meant by the "law" and how that might be applied to the refugee issues we are facing. I have previously raised the issue of international law. In general international law is made up of the international conventions to which countries have agreed to be bound. That includes Australia. It also includes customary principles that have been agreed by nations as being the "law". The Convention and Protocol relating to refugees that Australia ratified are b induing in international law.

Under our constitution ratification of international conventions does not automatically incorporate them into our law. The primary legislation setting out our obligations is the Migration Act. States are required under Articles 26 and 31 of the Vienna Convention (to which Australia is a party) to carry out their treaty obligations "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose."

I have and continue to argue that Australia is not acting in good faith and in the light of the Refugee Convention and Protocol's 'objects and purpose'.

This is not just my view. The High Court in 1995 in Minister for Immigration v Ah Hin Teoh confirmed that the legislative provisions of the Migration Act should be interpreted by courts to ensure, as far as was possible, that they were consistent with the provisions of Australia's international obligations.

To search for a specific provision in any Act therefore that mandates or prohibits a given course of action is not the end of the exercise. One also must look at other conventions whose provisions determine the proper approach to, in this case, refugees.

(Cont.)

(cont.) One particular example, although not the only one, is the convention on the rights of the child to which Australia is a party. It is not rocket science to work out that detaining children indefinitely in detention, with deleterious consequences for their mental and physical health, right to liberty, education and so on, breaches several Articles of the Convention.

It is little wonder that Australia's recent (i.e. both Labor & Coalition) government policies have raised the explicit concern of the High Commissioner for Refugees.

There are many other points that could be made in this context, but not within OLO's word limits. If you are interested there is an excellent summary on the www.humanrights.gov.au website. Chapter 4 of their inquiry into Australia's human rights obligations makes a number of salient points.

I am not suggesting that the solution is an easy one. It does require a number of things however, including forsaking simplistic slogans such as "stop the boats"; a recognition that any solution must be sought in an international context both on the basis of realistic negotiations with our neighbours and also recognising our international obligations. I would also like to see some recognition of the fact that our international policies play no small part in creating the problem in the first place, including but not limited to the illegal invasions of Afghanistan and Iraq.

JO'N: It is not rocket science to work out that detaining children indefinitely in detention, with deleterious consequences for their mental and physical health, right to liberty, education and so on, breaches several Articles of the Convention.

That's why I recommend that Australia foster the children to good Australian Christian or Atheist families until the parents have been dealt with in the Detention Centres.

Does that float ya boat James?

JKJ I've always done well in Law. I have a couple of Firsts; First person in Australia to divorce under the new Laws in 1975. First person to contest the Child Custody Laws under the new system of no Precedents allowed. I won my Assault Case on my own. I was on 3 counts of Assault with grievous bodily harm. It's great when your own Barrister tells you to, "just plead guilty, you'll only get a slap on the wrist." After 3 days in the Supreme Court the Jury was out for 2.5 minutes & came back with a "Not Guilty" to all charges. The Judge spoke, not nicely from what I could see from outside the Court room, to the Detective & the Plaintiffs for 3/4 hour after the Trial & I got the first AVO issued to a Man. My Barrister was pi$$ed off with me & the Prosecutor ended up as my Company Commander. I never could figure out why I didn't get on with him. It was only after I got out that I found out why. The Detective got reposted to Weipa where he ran an drug Importing Business in conjunction with a Barrister & with the Help of Mighty Scenic Services. If you want to move anything illegal around the Country use Might Scenic Services. Not an Ad.
A couple of Local Council things as well

In the Army, Subject C was Mil. Law. I got 100% for My Corporals Course. The next course was for Sgt. but there was only a WO's Course available, I topped that to with 100% which pi$$ed a few WO's off at the time. Later when I joined the ARES I did the Corporals & SGT. Subject Courses again & still got 100% for Mil. Law.

So, I'm no slouch when It comes to Law. That's why I get a bit Pi$$ed about people that twist the Law to suit their own ends.

JoN

"I have and continue to argue that Australia is not acting in good faith and in the light of the Refugee Convention and Protocol's 'objects and purpose'."

There is a world of difference between not acting in good faith and acting illegally.

Jayb
Okay.

Bet your house then?

Keep looking, QC.

JO'N
I agree neither Labor nor Liberal are acting, nor have acted, in good faith under the Convention, for at least two decades.

Both parties want a bet each way. On the one hand they want to present themselves in fashionable circles as caring about human rights, hence the whole concern about the UN, and appearances, and signing on to Conventions.

On the other hand they have both been pursuing policies by underhand means on the ground to try to squirm out if the Convention for decades. For example Labor brought in the amendments to the Migration Act in 1994 I think it was, that removed from refugees the common law rights of judicial review.

Now ask yourself this: what sort of person would be okay with passing a law, that a person at risk of being persecuted, could be sent back to death or torture or prison, even though the decision was "so unreasonable that no reasonable person could make it", or was made in bad faith?

Rank hypocrisy characterises this whole field, and of course it hasn't just been the Labor party that are guilty of it.

But unlike you, I don't agree that appeal to so-called international "law" is the solution: I think it's the problem.

Firstly, what you are calling international "law" is factually different in kind from what we usually call law. Usually the term is used to mean the product of a territorial monopolist of the supply of law - the state - who claims to be able to, and can in fact enforce it. None of these apply to international law, which is more akin to mere custom than law.

Secondly, it assumes that international law derives its just principles from what you call "countries" - nation-states. But that is to assume the intrinsic justice of nation-states in the first place! Yet a nation-state is by definition a territorial monopolist of initiating aggression against person and property so there is *no reason whatsoever* for the idea that ...

(cont.)

... states have any presumptive competence, let alone superiority, when it comes to human rights.

For example in the last century, nation-states have killed over 200 million people. Over 100 million was states killing their own subjects. The nation-state is by far the most violent and abusive institution in the history of the world – and the enormities of the Huns, and the Tartars, or all the religious persecutions of history, pale in comparison to those of the nation-state, in a fraction of the time.

The morally and intellectually bankrupt idea you are propounding:
that rights are whatever states – or associations of states – say they are, and that states have a “right” to shunt the costs of their decisions onto whoever they feel like backed by their claimed monopoly of force, is no different at all from the idea that is overwhelmingly the main source of the problems
a) causing the refugee flows in the first place, virtually all of whom are victims of the statist creed, and
b) in the Australian governments – both parties – abusively tormenting the poor bastards – whom the Australian government has solemnly undertaken to protect – and locking them up indefinitely in the middle of nowhere, and just not processing them – again based on the same moral and legal and political theory.

And your solution is to appeal to an even more open-ended power of states to get together and declare anything they feel like to be a “law” and a “right”?

I don’t think so.

I reject the entire theory that people are nothing but a species of chattel owned by nation-states, for the political classes thereof to dispose as they decide unilaterally - or by agreement among themselves, which is the only amelioration you offer. I reject entirely the false pretences of the Australian government to any competence whatsoever to speak authoritatively about human rights.

And you’re not offering to pay the costs of the values you profess, are you? You want others, who don’t agree with you, to be forced to pay:- abusive.

I would like to know why it wouldn't be a solution to your complaint to abrogate the Convention.

And why wouldn't it be a better and fairer solution, the Convention abrogated, to allow Australians individually or in groups, the freedom to sponsor all the refugees they want, provided they indemnify the rest of the community against all the costs, including of accommodation, assessment, settlement, and crimes?

Because as usual, the moralistic protestations of the left wing are fake. It's all about power and money, otherwise they'd put their money where their mouth is, and stop trying to use mere power to force other people, who don't agree with them, to submit and obey - the usual dreary statist creed they falsely claim to be above.

JKJ: You raise a large number of points in your last three comments. I do not have the time to examine each of them and respond appropriately. I mean you no discourtesy in saying that.

May I say generally though that I do not disagree that nation states have been responsible for huge carnage throughout history. That is not an argument however, for either disbanding the nation state or rejecting the potential of international law as a possible means of addressing those wrongs. Recent history shows for example, that it is not the law that is deficient per se, but the unwillingness or inability to hold wrongdoers to account.

One has only to point to the illegal invasion of Iraq and the untold death and misery that caused and is causing, and note that Bush, Blair and Howard are still walking free. That makes a mockery of the concept of accountability for waging the "supreme crime" that was established in Nuremberg and Tokyo after WW2.

The only other brief comment I would make is that in effect handing over migration/refugee policy to individual sponsors as you suggest would be unworkable in practice. No government is going to abdicate that responsibility.

It is of course always open to a State to withdraw from a Convention. There is in my view no compellable argument to do so here, and it would not absolve us anyway.

"One has only to point to the illegal invasion of Iraq and the untold death and misery that caused and is causing, and note that Bush, Blair and Howard are still walking free. That makes a mockery of the concept of accountability for waging the "supreme crime" that was established in Nuremberg and Tokyo after WW2."

Indeed. Open criminality. So much for the idea that the State, or the UN, has any credibility whatsoever as concerns human rights.

"Recent history shows for example, that it is not the law that is deficient per se, but the unwillingness or inability to hold wrongdoers to account."

The theory you are putting forward is no different to that which, by your own account, is causing the problem: that the "law" is whatever states say it is. It not only makes it easy for them to get out of it in practice. It spreads moral confusion but making it hard to recognise wrongdoing per se. All it takes is for states to declare their own abuses to be right, for you yourself to confuse their indefensible wrongdoings with what is right, which you do in the next sentence.

"The only other brief comment I would make is that in effect handing over migration/refugee policy to individual sponsors as you suggest would be unworkable in practice. No government is going to abdicate that responsibility."

Nothing you have said has shown that it would be unworkable in practice, nor that government has any such "responsibility" that does not depend on the abuses of their powers. You make *no* defence whatsoever of the use of aggressive violence to enforce the policies you advocate.

It is enough that I have shown
a) reason why abrogating the Convention would be more ethical, simpler and more pragmatic
b) that you have shown no reason why it wouldn't be, and
c) that you have shown no ethical or legal reason in favour of Austraalia's adherence to the Convention
d) that by your own standards there is no reason why anyone who accepts your premises, should accept your conclusion!