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.