A blow to refugee rights


On November 15, the High Court of Australia handed down a significant ruling on the legality of the Department of Immigration and Multicultural Affairs' (DIMA) administration of temporary protection visas (TPVs) for refugees.

The court ruled five to one that the provisions in the Migration Act requiring refugees to re-apply for recognition of their refugee status upon the expiry of their TPV — as if they had never before been deemed a refugee — are both valid and consistent with the 1951 Refugee Convention. The ruling overturns a Federal Court decision that a refugee who wishes to continue to live legally in Australia once their TPV expires does not have to prove that it is unsafe to be returned to their country of origin, but rather, it was up to DIMA to produce evidence that a refugee no longer needed protection from persecution.

At the heart of the High Court decision is the question of whether a person who is determined to be a refugee — that is, who has been persecuted or at risk of persecution in their home country and was unable to avail themselves of the protection of that home government — can be recognised as a refugee "for all time" and thus be eligible for permanent protection in the country to which they have fled. The High Court's answer was a resounding "no".

The majority's reading of the Refugee Convention and the Migration Act was that it is legitimate for the government to offer a persecuted person only temporary protection and to stop providing that protection at any time if it determines that the refugee can be returned to their country of origin.

This decision is one of the few legal opinions in the world that deals with the question of when it is permissible for governments to deport refugees and will have far-reaching impacts on the hundreds of refugees currently living on TPVs in Australia. While the Refugee Convention does outline circumstances in which a person can cease to be a refugee, the practical implications of the ruling for refugees and the majority of judges' reasoning in reaching their conclusion are deeply concerning.

The case in question involved a Shiite Hazara man from Afghanistan identified only as QAAH. He arrived in Australia in September 1999 and was granted a TPV in March 2000. QAAH was recognised as a refugee because of the very real chance that he would suffer persecution at the hands of the Taliban because he is Hazara.

In April 2000, QAAH applied for a permanent protection visa. In March 2003, he was granted another TPV that was to remain in force indefinitely while DIMA considered his application for permanent protection. QAAH argued that he should continue to receive protection because Afghanistan was still at war and there were no real changes in that country that made it safe for him to return.

In November 2003, DIMA refused QAAH's application on the basis that it was safe for him to return because the Taliban was no longer in power and QAAH could receive protection from the new Afghan "government". The Refugee Review Tribunal (RRT) and a single judge of the Federal Court affirmed this decision.

It is disturbing that the court's ruling rests on supporting the department's grossly flawed assessment. Even John Howard, Tony Blair and George Bush all accept that Afghanistan is still in the midst of war, and are deploying more troops to the region. The Taliban is undergoing a resurgence in parts of the country. Outside of the capital Kabul, there is little evidence that the "government" exercises any control, with vast tracts of the country being run by warlords.

The Edmund Rice Centre report Deported to Danger II, released earlier this year, demonstrated conclusively the dangers and death faced by refugees who Australia has deported to Afghanistan on the grounds it was "safe" to return. Further, the United Nations High Commissioner for Refugees, who had special leave to appear in this case, supported QAAH's arguments.

The UNHCR argued (and dissenting Justice Michael Kirby agreed) that it was the intention of the Refugee Convention that the recognition of a person as a "refugee" is not something that can be withdrawn or altered. The UNHCR, QAAH and Kirby contended that this irrevocable recognition of status should not be conflated with decisions about whether a person requires protection. Therefore, once a person has been recognised as a refugee, they will have already established they are in need of protection and the government will be bound to provide them with that protection. Any consideration of one of the refugee cessation grounds in the convention is a subsidiary question.

Indefinite temporary visas deny refugees access to a range of services, including English classes, and relegate refugees to a life of perpetual uncertainty. Stateless refugees will never be eligible to obtain Australian citizenship, which means they will be ineligible for family reunion and in some cases prevented from travelling to visit their families. Studies show that it is the temporary nature of TPVs that is the single greatest contributing factor to their holders developing serious mental illnesses.

This High Court decision legitimises TPVs and tacitly supports DIMA's deportation of any refugee at any time that it determines there has been a change in the circumstances of the refugee's country of origin. It is of no consequence that DIMA's assessment of such changed circumstances may be entirely misconceived.