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.