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