Naomi Hart

University

University of Sydney

Place (Rank)

1st Place

Year

2010

Introduction

On 11 January 2010, the Australian Government announced it had refused to grant an Australian visa to a fifth Sri Lankan asylum seeker from the 78 rescued from the Oceanic Viking in October 2009 on the basis that he posed a security threat.1 The United Nations High Commissioner for Refugees had already determined that the five asylum seekers had a well-founded fear of persecution in Sri Lanka.2 They now faced indefinite detention on Christmas Island, Australia‟s offshore immigration processing facility, until they voluntarily returned to Sri Lanka or a third country accepted them.3

Essay

Asylum as a Casualty of the War on Terror: The Refugees

Convention’s Exclusion Clauses

 

 

Question 6. Refugee policy is a major issue debated both in Australia and internationally. How should Australian laws address this issue while considering humanitarian concerns and national security?

 

On 11 January 2010, the Australian Government announced it had refused to grant an Australian visa to a fifth Sri Lankan asylum seeker from the 78 rescued from the Oceanic Viking in October 2009 on the basis that he posed a security threat.1   The United Nations High Commissioner for Refugees had already determined that the five asylum seekers had a well-founded fear of persecution in Sri Lanka.2     They now faced indefinite detention on Christmas Island, Australia‟s offshore immigration processing facility, until they voluntarily
returned to Sri Lanka or a third country accepted them.3
Reports leaked that the only woman among the five had worked as a legal officer in the de facto civil service established by the Liberation Tigers of Tamil Eelam (LTTE), which the Sri Lankan government defeated in May 2009 following a decades-long civil war.4   Two of

 

 

 

1  Samantha Hawley, „Visa denial leaves refugee in no-man‟s land‟, ABC News, 12 January 2010
<http://www.abc.net.au/news/stories/2010/01/12/2790781.htm>, 17 April 2010.
2  Paul Maley, „ASIO rejects four Viking Tamils‟, The Australian (Sydney), 12 January 2010
<http://www.theaustralian.com.au/news/nation/asio-rejects-four-viking-tamils/story-e6frg6nf-1225818220993>,
17 April 2010.
3  Hawley, above n 1; Yuko Narushima, „Tamil refugees were a known security threat‟, The Sydney Morning Herald (Sydney), 14 January 2010 <http://www.smh.com.au/national/tamil-refugees-were-a-known-security- threat-20100112-m4u6.html>, 17 April 2010.
4  Paul Maley, „Refugee was Tigers “agent”‟, The Australian (Sydney), 9 March 2010
<http://www.theaustralian.com.au/news/nation/refugee-was-tigers-agent/story-e6frg6nf-1225838421226>, 17
April 2010.
 
the men had admitted to smuggling pistols and ammunition for the LTTE.5   Many states, though not Australia, officially designate the LTTE a terrorist organisation.
This essay interrogates the interplay between refugee protection, exclusion from refugee status and anxieties about terrorism to which such adverse security assessments draw attention.  It explores how Australia should manage its competing priorities in assessing asylum claims: its national security on the one hand, and, on the other, its protection obligations, which can only be set aside when there is a high degree of certainty about an individual‟s personal culpability for an excludable offence.  It argues that the balance currently unsatisfactorily favours the former.
Article 1F of the 1951 Convention relating to the Status of Refugees („Refugees Convention‟)6  allows states to deny refugee protection to individuals „with respect to whom there are serious reasons for considering that … (b) he has committed a serious non-political crime‟.  Despite their political genesis,7  terrorist acts are characterised as „non-political‟ if they result in indiscriminate violence against civilians,8  or lack a rational connection to the
political motivation.9

 

 

 

 

5  Yuko Narushima, „Arms smuggler given fast-track asylum deal‟, The Sydney Morning Herald (Sydney), 22
April 2010 < http://www.smh.com.au/national/arms-smuggler-given-fasttrack-asylum-deal-20100421- t0lr.html>, 25 April 2010.
6  Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).
7  Walter Kälin and Jörg Künzli, „Article 1F(b): Freedom Fighters, Terrorists and the Notion of Serious Political Crimes‟ (2000) 12 International Journal of Refugee Law 46, 64; Stephen Legomsky, Immigration and Refugee Law and Policy (2nd  ed, 1997).
8  Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358, 386 (per Wilcox J);  Daljit Singh v
MIMA (2002) 102 FCR 51, 59; Minister for Immigration and Multicultural Affairs v Singh (2004) 209 CLR
533.
9  Gil v Canada, [1995] 1 FC 508 (CA), 535; Nico Keijzer, „The Political Offence Exception in Extradition
Law‟, in Peter van Krieken, ed, Refugee Law in Context: The Exclusion Clause (1999) 161, 163; Migration Act
1958 (Cth) s 91T; Extradition Act 1988 (Cth) s 5.  Increasingly, states – including Australia – also rely on article
1F(c), as the United Nations Security Council identified terrorism as contrary to the United Nations‟ purposes and principles. See SRLL v MIMIA [2002] AATA 795; Threats to international peace and security caused by terrorist acts, SC Res 1373, above n 14, [5].
 
Article 1F rests on sound rationales: receiving states‟ entitlement to exclude individuals who pose security risks,10 and the undesirability of allowing authors of atrocities to evade prosecution in their home state.11
The terrorist attacks on the United States on 11 September 2001, and subsequent attacks in Spain, Indonesia and the United Kingdom, inter alia, have cultivated profound anxieties in developed countries about dangerous elements penetrating their borders,12
leading governments to contract refugee protection substantially.13   Seventeen days after

September 11, the United Nations Security Council passed Resolution 1373, urging states to
„take appropriate measures before granting refugee status [to ensure] refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts‟.14   Identification of asylum seekers as national security threats endures.15   In 2009, in response to the Oceanic Viking standoff, Australian parliamentarian Wilson Tuckey opined that „maybe one in 100

 

 

 

 

10  United Nations High Commissioner for Refugees („UNHCR‟), „Handbook on Procedures and Criteria for Determining Refugee Status‟ (1992), [148], [151]; John Vrachnas, Kim Boyd, Mirko Bagaric and Penny Dimopoulos, Migration and Refugee Law: Principles and Practice in Australia (2005), 272.
11  James Hathaway, The Law of Refugee Status (1991), 221; Roz Germov and Francesco Motta, Refugee Law in Australia (2003), 433; UNHCR, above n 10, [148], [151]; Mary Crock, Immigration and Refugee Law in Australia (1998), 151; Vrachnas, Boyd, Bagaric and Dimopoulos, above n 10, 272.
12  Report of the Policy Working Group on the United Nations and Terrorism, UNDoc. A/57/273, S/2002/875
(2002), [14]; Rene Bruin and Kees Wouters, „Terrorism and the Non-derogability of Non-refoulement‟ (2003)
15 International Journal of Refugee Law 5, 6; Volker Türk, „Opinion: Forced Migration and Security‟ (2003) 15
International Journal of Refugee Law 113, 117; Penelope Mathew, „Australian Refugee Protection in the Wake of the Tampa‟ (2002) 96 American Journal of International Law 661, 661; Obiora Chinedu Okafar and Pius Lekwuwu Okoronkwo, „Re-configuring Non-refoulement? The Suresh Decision, „Security Relativism‟, and the International Human Rights Imperative‟ (2003) 15 International Journal of Refugee Law 30, 33.
13  Ben Saul, „Exclusion of Suspected Terrorists from Asylum: Trends in International and European Refugee Law‟, Institute for International Integration Studies, Discussion Paper 26 (2004), 2; Monette Zard, „Exclusion, Terrorism and the Refugee Convention‟ (2002) 13 Forced Migration Review 32, 32; Michael Kingsley Nyinah,
„Exclusion Under Article 1F: Some Reflections on Context, Principles and Practice‟ (2000) 12 International Journal of Refugee Law 295, 312; Matthew Zagor, „Persecutor or Persecuted: Exclusion under Article 1F(a) and (b) of the Refugees Convention‟ (2000) 23 University of New South Wales Law Journal 164, 165.
14  Threats to international peace and security caused by terrorist acts, SC Res 1373, UN SCOR, 56th Sess, UNDoc S/INF/57 (2001) 1.
15  Pirkko Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited (1997), 41; Türk, above n 12, 114; Mary Kenny, „Terrorism and Exclusion under the Refugee Convention‟ (2003) 82
Reform 37, 37.
 
[asylum seekers] might be [a] security risk‟. In January 2010, he said he felt vindicated that

„we‟re now at … five persons from the 78 that were on that vessel‟.16

Exclusion can expose individuals to the risk of persecution, including torture and execution, in their home states.  The Refugees Convention‟s exclusion clauses should be interpreted strictly.17   Even in an age where terrorism endangers international peace and security, refugee law should underscore the Convention‟s humanitarian imperatives and proceed from the assumption that refugees are escaping, not perpetrating, violence.18   As Australia grapples with arrivals of asylum seekers from conflict zones where terrorist attacks have been prolific – especially Sri Lanka and Afghanistan – it should draw three lessons from its own and other jurisdictions‟ past means of mediating the interests of individual protection and national security.  These lessons relate to defining membership in a terrorist organisation as an excludable offence, suppressing information forming the basis of exclusion, and tolerating the risk of persecution against individuals identified as security threats.

 

A Membership in terrorist organisations

Given the grave consequences of denying protection, states should require a high degree of certainty about an asylum seeker‟s individual blameworthiness for an excludable offence.19
One pernicious trend is to define mere membership in particular organisations as sufficient to

 

 

16  Hawley, above n 1.
17  Edward Kwakwa, „Article 1F(c): Acts Contrary to the Purposes and Principles of the United Nations‟ (2000)
12 International Journal of Refugee Law 79, 80, 81; Savitri Taylor, „Guarding the Enemy from Oppression: Asylum Seeker Rights Post-September 11‟ (2002) 26 Melbourne University Law Review 396, 404; Nyinah, above n 13, 299; Kenny, above n 15, 38; Kourula, above n 15, 25.
18  Saul, above n 13, 12.
19  UNHCR, „Handbook‟, above n 10, [149]; UNHCR, Note on Exclusion Clauses, above n 25, [21]; Nyinah, above n 13, 300, 305; Germov and Motta, above n 11, 420; Michael Bliss, „“Serious Reasons for Considering”: Minimum Standards of Procedural Fairness in the Application of the Article 1F Exclusion Clauses‟ (2000) 12
International Journal of Refugee Law 92, 126; Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd ed, 2007), 183; Carlos Galiano, „Portugal‟, in Jean-Yves Carlier, Dirk Vanheule, Klaus Hullman and Carlos Galiano, eds, Who is a Refugee? A Comparative Case Law Study (1997) 527, 560; Saul, above n 13, 9.
 
warrant exclusion.20   The United States‟ Immigration and Nationality Act21 and Canada‟s Immigration and Refugee Protection Act,22 for example, permit exclusion based purely on membership of designated terrorist groups.  Canadian, British and French courts have
imposed a strong presumption of excludability for members of organisations with a „limited brutal purpose‟, including the LTTE, the Workers‟ Party of Kurdistan in Turkey, and the Islamic Salvation Front in Algeria.23
The recent adverse security assessments of Christmas Island detainees illustrate that in

Australia, affiliation with a violent group is relevant to asylum claims, despite not being a ground for automatic exclusion.  Australian authorities should be more sensitive to individual culpability in two ways.
First, authorities should consider the nature and extent of an individual‟s involvement in an organisation.  In the Canadian case of Ward,24 the applicant had been a member of the Irish National Liberation Army („INLA‟).  The Supreme Court warned that admitting members of this „illegal paramilitary organization‟ would render Canada a „haven‟ for terrorist sympathisers.25   Arguably, the Court overlooked the particularities of Ward‟s case: he had disobeyed INLA orders by liberating its hostages, inducing the INLA to torture him
and sentence him to death.26   In dissent, MacQuigan J emphasised that Ward lent support, at

great personal risk, to the rule of law.27

 

 

20  Saul, above n 13, 1.
21  James Sloan, „The Application of Article 1F of the 1951 Convention in Canada and the United States‟ (2000)
12 International Journal of Refugee Law 223, 224; Immigration and Nationality Act §219(a) 8 USC
§1189(a)(1).
22  Immigration and Refugee Protection Act, SC 2001, c.27 s 115(2)(a)(b).
23  Diaz v Canada, (1995) 94 FTR 237; Indra Gurang v Secretary of State for the Home Department [2003] Imm AR 115; Sibylle Kapferer, „Exclusion Clauses in Europe: A Comparative Overview of State Practice in France, Belgium and the United Kingdom‟ (2000) 12 International Journal of Refugee Law 195, 212.
24  Ward v Canada, [1993] 2 SCR 689.
25  Ibid [197], [199].
26  Davies Bagambiire, „Terrorism and Convention Refugee Status in Canadian Immigration Law: The Social
Group Category according to Ward v. Canada‟ (1993) 5 International Journal of Refugee Law 183, 193.
27  Ward v Canada, [1993] 2 SCR 689, [211].
 
Since Ward, Canadian courts have accommodated different degrees of wrongdoing through a tripartite test for exclusion: whether the individual is a member of a terrorist organisation; whether he/she personally and knowingly participated in violent acts; and whether he/she dissociated from the organisation prior to claiming asylum.28   Canada has
used this test to exclude high-profile LTTE leaders;29 France and the United Kingdom have

used similar tests to determine that low-ranking members of terrorist organisations in

Djibouti and Sri Lanka, respectively, should not be excluded.30

Australian authorities should be similarly responsive to types of involvement in terrorist organisations.  For example, if a court found that the woman who worked in the LTTE- established court system – the de facto civilian infrastructure in northern Sri Lanka31 – never personally and knowingly participated in violent attacks, she should not be classified identically to those LTTE leaders or foot soldiers who had done so.
Secondly, Australian authorities should recognise that civilians in conflict zones are regularly intimidated into joining militant organisations.  The United States Board of Immigration Appeals has explicitly rejected this proposition, stating that participation in such groups „need not be of [a claimant‟s] own volition to bar him from relief‟.32  This approach obfuscates the personal culpability requirement that underpins article 1F by punishing individuals who committed crimes unwillingly.
In assessing asylum claims of Afghani and Sri Lankan nationals on Christmas Island, Australian authorities should recall that terrorist organisations in both countries coerce
individuals into joining.33   Family members of the Tamil woman who worked in the LTTE

28  Gutierrez v Canada, [1994] 84 FTR 227; Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306.
29  Sivakumar v Canada, [1994] 1 FC 433.
30  Mohamed Ali Houmed, CRR, 306.719, 6 November 1998; Srirangan Kathiripillai (12250a) IAT (1996).
31  Maley, „Refugee was Tigers “agent”‟, above n 4.
32  Matter of Rodriguez-Majano, 19 I&N Dec 811 (BIA, 1998).
33  Applicant S v MIMIA [2004] HCA 25; Asoka Bandarage, The Separatist Conflict in Sri Lanka: Terrorism, Ethnicity, Political Economy (2009), 21.
 
courts report that civilians in LTTE-controlled areas „had no choice but to work with, or for, the LTTE command‟.34  One of the former weapons smugglers told reporters that the LTTE
„collected young people to join their group‟, and it was dangerous to resist.35   Asylum seekers

who are forced to participate in militant organisations are neither undeserving of protection nor likely to jeopardise Australia‟s security, so fall outside the rationales for exclusion.

 

B Procedural fairness and information suppression

High standards of procedural fairness are crucial in exclusion cases, but inconsistently observed: authorities frequently suppress evidence upon which they rely to make adverse assessments, and hearings on excludability are closed.  The Australian Security and Intelligence Organisation („ASIO‟) refused to release the evidence it used to deny visas to the Christmas Island detainees.  Even the Minister for Immigration and Citizenship, Senator
Chris Evans, said that he had not seen the information.36   Such suppression is justified by

decision-makers – and tolerated by the public – because of purported „national security‟

interests which prevail over basic legal guarantees.37

Article 1F demands that states have „serious reasons‟ to support exclusion findings. This standard cannot be meaningfully sustained when asylum seekers cannot challenge adverse evidence.
Australian experience has revealed the hazards of concealing such evidence.  In
November 2004, ASIO was forced to pay $200,000 in damages to one Kuwaiti refugee, Sultan, who had been falsely classified as a security risk and detained without trial for two

 

34  Maley, „Refugee was Tigers “agent”‟, above n 4.
35  Narushima, „Arms smuggler given fast-track asylum deal‟, above n 5.
36  Hawley, above n 1; Narushima, „Tamil refugees were a known security threat‟, above n 3; Danny Morgan and
Linda Mottram, „Australian government pressured over Tamils‟ visa refusals‟, ABC Radio Australia, 13 January
2010 <http://www.radioaustralianews.net.au/stories/201001/2790915.htm?desktop>, 19 April 2010.
37  Bliss, above n 19, 123; Taylor, above n 17, 405; Donald Kerwin, „The Use and Misuse of “National Security” Rationale in Crafting US Refugee and Immigration Policies‟ (2005) 17 International Journal of Refugee Law
749, 760.
 
years.  Following Iraq‟s invasion of Kuwait, the Kuwait monarchy‟s police had deported Sultan to Iraq.38   The fact that neither the applicant nor the tribunals affirming his excludability could access the defective material upon which ASIO relied insulated it from proper scrutiny.39
The Sultan case exposes several deficiencies in Australia‟s refugee status determination process.  Applicants being unable to rebut adverse evidence heightens the risk of unwarranted exclusions based on faulty information.40   Particularly problematically, the evidence which ASIO uses to make security assessments is often garnered from the applicants‟ country of origin, even when that country is accused of persecution.41   ASIO never revealed whether it received its information from the Kuwaiti secret police that had initially deported Sultan to Iraq, or Saddam Hussein‟s Ba‟athist regime, but Sultan had asserted a well-founded fear of persecution at the hands of both.42   More recently, a former diplomat at the Australian High Commission in Colombo, Sri Lanka, revealed that High Commission staff conducting background security checks on asylum seekers receive most of their information from the Sinhalese police, which he described as „absolute nonsense because … [the applicants] were on the other side in a civil war‟.43
One dangerous dimension of this information asymmetry is that courts and tribunals

have tolerated being denied access to information grounding an exclusion.  In Sultan, the

Federal Court found it sufficient that „the competent Australian authorities‟ had made a

security assessment.44   In Rehman,45 Lord Hoffman described September 11 as

 

38  Director-General of Security v Nashmy Obed Sultan & Anor (1998) 90 FCR 334.
39  Michael Head, „Refugee detained for two years on false ASIO intelligence‟ (2005) 30 Alternative Law
Journal 34, 34; Kenny, above n 15, 43; Taylor, above n 17, 411.
40  Kenny, above n 15, 42.
41  Lawyers Committee for Human Rights, „Safeguarding the Rights of Refugees under the Exclusion Clasues:
Summary Findings of the Project and a Lawyers Committee for Human Rights Perspective‟, (2000) 12
International Journal of Refugee Law 317, 333.
42  Head, above n 39, 34.
43  Morgan and Mottram, above n 36.
44  Director-General of Security v Nashmy Obed Sultan & Anor (1998) 90 FCR 334.
 
a reminder that in matters of national security, the cost of failure can be high, … underlin[ing] the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security.46
In Suresh, the Canadian Supreme Court approved this passage and continued that the

Minister „has access to special information and expertise in these matters‟ and so should be exclusively entrusted with decisions relating to exclusion.47
Such deference to the executive constitutes an abdication of the judiciary‟s responsibility to oversee refugee status determination.  Australian courts could instead adopt the European Court of Human Rights‟ approach in Al-Nashif.48   Al-Nashif was a Palestinian asylum seeker at risk of exclusion because he had been accused of engaging in unlawful religious activities, the details of which were suppressed on national security grounds.49   The Court stated,
Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information.50
Judicial oversight demands that the executive be compelled to corroborate and expose to

rebuttal evidence upon which their decisions rely, especially if it is drawn from potentially unreliable sources.  Even where national security is allegedly at stake, courts should demand
access to evidence and treat it sensitively.

 

45  Secretary of State for the Home Department v Rehman [2001] 3 WLR 877.
46  Ibid, [62].
47  Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, [33]; Bruin and Wouters, above n 12, 13.
48  Al-Nashif v Bulgaria, 20 June 2002, 36 ECHR 37.
49  Bruin and Wouters, above n 12, 19.
50  Al-Nashif v Bulgaria, 20 June 2002, 36 ECHR 37, [123]-[124].
 
C Non-refoulement: engaging an absolute obligation in a balancing act

The cornerstone of states‟ obligations to refugees is contained in article 33(1) of the Refugees

Convention, which provides,

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.

Under complementary protection regimes, states may not return refugees to countries where there are substantial grounds for believing they may be tortured.51   This prohibition is arguably absolute, even for alleged terrorists.52   The United Nations Committee Against Torture found that Sweden could not exclude a Peruvian national despite his previous involvement in violent political activities, because he faced a risk of torture in Peru.53
Reprehensibly, over the last decade, states have been increasingly willing to exclude individuals convicted or even merely suspected of participation in terrorist activities, even where they may be tortured in their home state.  Again, „national security‟ is the legitimating factor.  Numerous post-September 11 regional measures such as the Inter-American Convention against Terrorism54 and the European Union‟s Common Position on Combating
Terrorism55 compel states to exclude automatically individuals whom there are serious

grounds to classify as terrorists.56   Ben Saul comments that such agreements may force states

 

 

 

51  United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, opened for signature 10 December 1984, 1456 UNTS 85 (entered into force 26 June 1987), article
3; European Convention on Human Rights, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), article 3.
52  Okafar and Okoronkwo, above n 12, 31; Kälin and Künzli, above n 7, 70.
53  Tapia Paez v Sweden, Communication No. 39/1996 (CAT).
54  Inter-American Convention against Terrorism, opened for signature 3 June 2002, (2003) 42 ILM 19 (entered into force 10 July 2003).
55  European Union, Common Position on Combating Terrorism, 2001/930/CSFP.
56  Saul, above n 13, 3.
 
to exclude individuals who may be tortured,57 inconsistently with non-refoulement

obligations which apply irrespective of individuals‟ prior acts and affiliations.58

Even in the absence of measures requiring such automatic exclusion, courts have engaged in an insidious „balancing‟ of national security and individuals‟ right to protection from torture.  Courts have previously rejected such a weighing of interests: the European Court of Human Rights, for example, proscribes derogation from article 3, guaranteeing freedom from torture.59 But in December 2001, the European Commission declared,
Following the 11th September events, the European Court of Human Rights may … again

have to rule on questions relating to the interpretation of Article 3 [and] how far there can be a „balancing act‟ between the protection needs of the individual, set off against the security interests of the state.60
In Suresh, departing from previous Canadian jurisprudence, the Canadian Supreme Court

entertained the idea of a balancing act, provided it was consistent with „fundamental justice‟.61  The Court decided not to exclude an LTTE member who may be tortured in Sri Lanka.  Although it conceded that any balancing „will usually come down against expelling a person to face torture elsewhere‟,62 it found that „in an exceptional case … deportation might be justified‟.63
Extradition, exclusion or expulsion to face torture is necessarily inconsistent with any

principles of „fundamental justice‟. Australia should sustain its commitment not to refouler

 

 

 

57  Ibid.
58  Kourula, above n 15, 127; Aoife Duffy, „Expulsion to Face Torture?: Non-Refoulement in International Law‟
(2008) 20 International Journal of Refugee Law 373, 382-3.
59  Chahal v United Kingdom [1996] ECHR 54.
60  European Commission, Working Document, The relationship between safeguarding internal security and complying with international protection obligations and instruments, COM (2001) 743, 16.
61  Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, [59].
62  Ibid, [58].
63  Ibid, [129].
 
individuals in such situations.  Commendably, Senator Evans issued assurances that the Sri

Lankan detainees would not be returned to Sri Lanka.64

 

Conclusion

The institution of asylum has been one casualty of global efforts to combat terrorism.  By December 2010, the number of excluded asylum seekers from the Oceanic Viking has climbed to eight.65   Australia should place a premium on the Refugees Convention‟s humanitarian impulses by ensuring that such exclusions on national security grounds do not conflict with its most important protection obligations.
Accepting refugees who may have committed acts of terrorism need not equate to impunity for these individuals.  Numerous authors point to the possibility of trying suspected terrorists within host states‟ borders.66   The International Convention for the Suppression of
the Financing of Terrorism67 already exhorts states to prosecute suspects who they are
unwilling to expel or extradite.68   Since the early 1990s, American jurisprudence has recognised the possibility of extending universal criminal jurisdiction to include terrorist offences.69   Providing an impartial trial in the host state is far more responsible than sending a suspected or convicted criminal to frontiers where their freedom from persecution cannot be guaranteed.

 

 

 

64  Hawley, above n 1; Maley, „ASIO rejects four Viking Tamils‟, above n 2; Narushima, „Tamil refugees were a known security threat‟, above n 3.
65  Joe Kelly, „ASIO rejects Sri Lankan refugees from Oceanic Viking stand-off‟, The Australian, 17 December
2010 < http://www.theaustralian.com.au/national-affairs/asio-rejects-sri-lankan-refugees-from-oceanic-viking- stand-off/story-fn59niix-1225972655960 >, 20 December 2010.
66  Bruin and Wouters, above n 12, 28; Lawyers Committee for Human Rights, above n 41, 322; Kapferer, above n 23, 219; Okafar and Okoronkwo, above n 12, 41; Keijzer, above n 9, 162.
67  International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January
2000, 2178 UNTS 229 (entered into force 10 April 2002).
68  Bruin and Wouters, above n 12, 28.
69  United States v Yunis 924 F2d 1086 (CADC, 1991).
 
Bibliography

 

 

A Cases

Australia

Applicant S v MIMIA [2004] HCA 25

Daljit Singh v MIMA (2000) 102 FCR 51

Director-General of Security v Nashmy Obed Sultan & Anor (1998) 90 FCR 334

Minister for Immigration and Multicultural Affairs v Singh (2004) 209 CLR 533

Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358

SRLL v MIMIA [2002] AATA 795

 

Canada

Diaz v Canada, (1995) 94 FTR 237

Gil v Canada, [1995] 1 FC 508 (CA)

Gutierrez v Canada, [1994] 84 FTR 227

Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306

Sivakumar v Canada, [1994] 1 FC 433

Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3

Ward v Canada, [1993] 2 SCR 689

 

European Court of Human Rights

Al-Nashif v Bulgaria, 20 June 2002, 36 ECHR 37

Chahal v United Kingdom [1996] ECHR 54

 

France
 
Mohamed Ali Houmed, CRR, 306.719, 6 November 1998

 

United Kingdom

Indra Gurang v Secretary of State for the Home Department [2003] Imm AR 115

Secretary of State for the Home Department v Rehman [2001] 3 WLR 877

Srirangan Kathiripillai (12250a) IAT (1996)

 

United States

Matter of Rodriguez-Majano, 19 I&N Dec 811 (BIA, 1998)

United States v Yunis 924 F2d 1086 (CADC, 1991)

 

B Domestic legislation

Australia

Extradition Act 1988 (Cth)

Migration Act 1958 (Cth)

 

Canada

Immigration and Refugee Protection Act, SC 2001

 

United States

Immigration and Nationality Act, 8 USC

 

C United Nations documents

Report of the Policy Working Group on the United Nations and Terrorism, UNDoc.

A/57/273, S/2002/875 (2002)
 
Tapia Paez v Sweden, Communication No. 39/1996 (CAT)

Threats to international peace and security caused by terrorist acts, SC Res 1373, UN SCOR, 56th Sess, UNDoc S/INF/57 (2001) 1
United Nations High Commissioner for Refugees, „Handbook on Procedures and Criteria for

Determining Refugee Status‟ (1992)

United Nations High Commissioner for Refugees, Note on the Exclusion Clauses, Paper presented to the Executive Committee of the High Commissioner‟s Programme, Standing Committee, 8th Mtg, UNDoc. EC/47/SC/CRP.29 (1997)

 

D International treaties

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS

150 (entered into force 22 April 1954)

European Convention on Human Rights, opened for signature 4 November 1950, 213 UNTS

221 (entered into force 3 September 1953)

Inter-American Convention against Terrorism, opened for signature 3 June 2002, (2003) 42

ILM 19 (entered into force 10 July 2003)

International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2178 UNTS 229 (entered into force 10 April 2002)
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1456 UNTS 85 (entered into force 26 June 1987)

 

E Other primary sources
 
European Commission, Working Document, The relationship between safeguarding internal security and complying with international protection obligations and instruments, COM (2001) 743
European Union, Common Position on Combating Terrorism, 2001/930/CSFP

 

F Academic secondary sources

Bagambiire, Davies, „Terrorism and Convention Refugee Status in Canadian Immigration Law: The Social Group Category according to Ward v. Canada‟ (1993) 5 International Journal of Refugee Law 183
Bandarage, Asoka, The Separatist Conflict in Sri Lanka: Terrorism, Ethnicity, Political

Economy (2009)

Bliss, Michael, „“Serious Reasons for Considering”: Minimum Standards of Procedural

Fairness in the Application of the Article 1F Exclusion Clauses‟ (2000) 12

International Journal of Refugee Law 92

Bruin, Rene and Kees Wouters, „Terrorism and the Non-derogability of Non-refoulement‟

(2003) 15 International Journal of Refugee Law 5

Crock, Mary, Immigration and Refugee Law in Australia (1998)

Duffy, Aoife, „Expulsion to Face Torture?: Non-Refoulement in International Law‟ (2008) 20

International Journal of Refugee Law 373

Galiano, Carlos, „Portugal‟, in Carlier, Jean-Yves, Vanheule, Dirk, Hullman, Klaus and

Galiano, Carlos, eds, Who is a Refugee? A Comparative Case Law Study (1997) 527. Germov, Roz and Francesco Motta, Refugee Law in Australia (2003)
Goodwin-Gill, Guy and Jane McAdam, The Refugee in International Law (3rd ed, 2007).

Hathaway, James, The Law of Refugee Status (1991)
 
Head, Michael, „Refugee detained for two years on false ASIO intelligence‟ (2005) 30

Alternative Law Journal 34

Kälin, Walter and Jörg Künzli, „Article 1F(b): Freedom Fighters, Terrorists and the Notion of

Serious Political Crimes‟ (2000) 12 International Journal of Refugee Law 46

Kapferer, Sibylle, „Exclusion Clauses in Europe: A Comparative Overview of State Practice in France, Belgium and the United Kingdom‟ (2000) 12 International Journal of Refugee Law 195
Keijzer, Nico, „The Political Offence Exception in Extradition Law‟, in van Krieken, Peter,

ed, Refugee Law in Context: The Exclusion Clause (1999) 161

Kenny, Mary, „Terrorism and Exclusion under the Refugee Convention‟ (2003) 82 Reform 37

Kerwin, Donald, „The Use and Misuse of “National Security” Rationale in Crafting US Refugee and Immigration Policies‟ (2005) 17 International Journal of Refugee Law
749

Kourula, Pirkko, Broadening the Edges: Refugee Definition and International Protection

Revisited (1997)

Kwakwa, Edward, „Article 1F(c): Acts Contrary to the Purposes and Principles of the United

Nations‟ (2000) 12 International Journal of Refugee Law 79

Lawyers Committee for Human Rights, „Safeguarding the Rights of Refugees under the Exclusion Clasues: Summary Findings of the Project and a Lawyers Committee for Human Rights Perspective‟, (2000) 12 International Journal of Refugee Law 317
Legomsky, Stephen, Immigration and Refugee Law and Policy (2nd ed, 1997)

Mathew, Penelope, „Australian Refugee Protection in the Wake of the Tampa‟ (2002) 96

American Journal of International Law 661

Nyinah, Michael Kingsley, „Exclusion Under Article 1F: Some Reflections on Context, Principles and Practice‟ (2000) 12 International Journal of Refugee Law 295
 
Okafar, Obiora Chinedu and Pius Lekwuwa Okoronkwo, „Re-configuring Non-refoulement?

The Suresh Decision, „Security Relativism‟, and the International Human Rights

Imperative‟ (2003) 15 International Journal of Refugee Law 30

Saul, Ben, „Exclusion of Suspected Terrorists from Asylum: Trends in International and European Refugee Law‟, Institute for International Integration Studies, Discussion Paper 26 (2004)
Sloan, James, „The Application of Article 1F of the 1951 Convention in Canada and the

United States‟ (2000) 12 International Journal of Refugee Law 223

Taylor, Savitri, „Guarding the Enemy from Oppression: Asylum Seeker Rights Post-

September 11‟ (2002) 26 Melbourne University Law Review 396

Türk, Volker, „Opinion: Forced Migration and Security‟ (2003) 15 International Journal of

Refugee Law 113

Vrachnas, John, Kim Boyd, Mirko Bagaric and Penny Dimopoulos, Migration and Refugee

Law: Principles and Practice in Australia (2005)

Zagor, Matthew, „Persecutor or Persecuted: Exclusion under Article 1F(a) and (b) of the

Refugees Convention‟ (2000) 23 University of New South Wales Law Journal 164

Zard, Monette, „Exclusion, Terrorism and the Refugee Convention‟ (2002) 13 Forced

Migration Review 32

 

G Newspaper articles

Hawley, Samantha, „Visa denial leaves refugee in no-man‟s land‟, ABC News, 12 January

2010 <http://www.abc.net.au/news/stories/2010/01/12/2790781.htm>, 17 April 2010

Kelly, Joe, „ASIO rejects Sri Lankan refugees from Oceanic Viking stand-off‟, The

Australian, 17 December 2010 < http://www.theaustralian.com.au/national-affairs/asio-
 
rejects-sri-lankan-refugees-from-oceanic-viking-stand-off/story-fn59niix-

1225972655960 >, 20 December 2010

Maley, Paul, „ASIO rejects four Viking Tamils‟, The Australian (Sydney), 12 January 2010

<http://www.theaustralian.com.au/news/nation/asio-rejects-four-viking-tamils/story- e6frg6nf-1225818220993>, 17 April 2010
Maley, Paul, „Refugee was Tigers “agent”‟, The Australian (Sydney), 9 March 2010

<http://www.theaustralian.com.au/news/nation/refugee-was-tigers-agent/story- e6frg6nf-1225838421226>, 17 April 2010
Morgan, Danny and Mottram, Linda, „Australian government pressured over Tamils‟ visa refusals‟, ABC Radio Australia, 13 January 2010
<http://www.radioaustralianews.net.au/stories/201001/2790915.htm?desktop>, 19

April 2010

Narushima, Yuko, „Arms smuggler given fast-track asylum deal‟, The Sydney Morning Herald (Sydney), 22 April 2010 < http://www.smh.com.au/national/arms-smuggler- given-fasttrack-asylum-deal-20100421-t0lr.html>, 25 April 2010
Narushima, Yuko, „Tamil refugees were a known security threat‟, The Sydney Morning Herald (Sydney), 14 January 2010 <http://www.smh.com.au/national/tamil-refugees- were-a-known-security-threat-20100112-m4u6.html>, 17 April 2010