SUBMISSIONS TO THE REFUGEE REVIEW
TRIBUNAL REGARDING s.91R(3) MIGRATION ACT 1958 
Basis for receipt of submissions
by the Tribunal
1. The Human
Rights and Equal Opportunity Commission ("the Commission") seeks
to make submissions to the Tribunal pursuant to paragraphs 11(1)(g), (o)
and (p) of the Human Rights and Equal Opportunity Commission Act 1986
(Cth) ("the HREOC Act").
This Tribunal is not bound by technicalities or rules of evidence. 
As such, the Commission submits that this Tribunal has power to accept
the submissions of non-parties in such circumstances as it considers appropriate.
3. While the
Commission contends that that power should not be subject to the tests
normally applied by Courts in relation to applications for leave to intervene,
the Commission submits that those tests are satisfied in relation to the
Commission's intervention in this matter.
4. The proceedings
before this Tribunal involve issues of general principle and public importance
that may affect, to a significant extent, persons other than the Applicant.
Those issues include matters relevant to the human rights of people applying
for protection visas under the Migration Act 1958.
5. As set
out in annexure A to these submissions, the Commission has statutory functions
in relation to the human rights of such people. Examples of relevant activities
undertaken pursuant to those functions are set out in annexure B to these
6. The Commission
submits that it has:
(a) a legitimate
concern in making submissions in relation to the human rights of people
applying for protection visas;
(b) an interest
in the subject of the litigation greater than a mere desire to have
the law declared in particular terms; 
(c) an ability
to make submissions which the Tribunal might consider that it "should
have to assist it to reach a correct determination"; 
(d) special knowledge
and expertise relevant to the issues that are the subject of the proceedings;
(e) an ability
to make submissions which differ from those of the Applicant and are
likely to "assist the [Tribunal] in a way in which the [Tribunal]
would not otherwise have been assisted". 
7. No practical
considerations militate against the receipt of these submissions because:
(a) the Applicant
has received adequate notice of the Commission's intention to make submissions
to the Tribunal;
(b) the Applicant
has received adequate notice of the outline of submissions proposed
to be made by the Commission in the event that they are accepted; and
(c) the scope of
the Commission's proposed submissions is strictly limited to issues
not addressed by the Applicant.
Section 91R(3) of the Migration
8. The Commission
understands that one of the issues likely to arise before this Tribunal
is whether certain actions relied upon by the Applicant in relation to
the Applicant's application for a protection visa should be disregarded
pursuant to section 91R(3) of the Migration Act 1958, which is
in the following terms:
For the purposes
of the application of this Act and the regulations to a particular person:
(a) in determining
whether the person has a well-founded fear of being persecuted for one
or more of the reasons mentioned in Article 1A(2) of the Refugees Convention
as amended by the Refugees Protocol;
disregard any conduct
engaged in by the person in Australia unless:
(b) the person
satisfies the Minister that the person engaged in the conduct otherwise
than for the purpose of strengthening the person's claim to be a refugee
within the meaning of the Refugees Convention as amended by the Refugees
That section was
inserted in the Migration Act 1958 by the Migration Legislation
Amendment Act (No.6) 2001.
the Second Reading Speech in relation to the Migration Legislation
Amendment Act (No.6) 2001, the following comments were made regarding
the insertion of section 91R(3):
I am also concerned
about court decisions that have recognised the claims of applicants
who have deliberately set out to contrive claims for refugee status
after arriving in Australia.
deliberately seeking to attract hostile attention from a home country
government, makes a mockery of an applicant having a real fear of persecution.
will make it clear that any actions by a person taken after arrival
in Australia will be disregarded unless the minister is satisfied that
the actions were not done just to strengthen claims for protection.
was not intended to provide protection to applicants who contrive claims
in second or third countries and who have no other basis for claims
to refugee status.
10. This Tribunal
may have regard to the material in the second reading speech to confirm
(or, to the extent that section 91R(3) is ambiguous, determine) the meaning
of section 91R(3) of the Migration Act 1958. 
Outline of Commission's argument
11. To the
extent that issues regarding the interpretation and application of section
91R(3) arise in this matter, the Commission submits that:
- section 91R(3)
should be construed in accordance with the normal principles of statutory
interpretation, including those principles regarding the relevance of
Australia's obligations under international human rights instruments;
- Australia's obligations
pursuant to article 19(2) of the International Covenant on Civil
and Political Rights (the ICCPR)  are relevant
to the interpretation of section 91R(3); and
- having regard
to those matters, conduct engaged in by a person in Australia applying
for a protection visa should not be disregarded pursuant to section
91R(3) if that person satisfies the Minister (or, in this case, the
Tribunal) that, in engaging in such conduct, they were not acting for
the sole purpose of setting up a fraudulent claim for a protection visa.
Relevance of international
12. It is
a long-established presumption that a statute is to be interpreted and
applied, as far as its language admits, so as not to be inconsistent with
the comity of nations and established rules of international law. 
If the Parliament intends to effect inconsistency "it must express
its intention with irresistible clearness to induce a Court to believe
that it entertained it." 
there is ambiguity, the High Court has held that courts should favour
a construction of a statute that accords with the obligations of Australia
under an international treaty.  The High Court has
said that a common sense approach suggests that Parliament intended to
legislate in accordance with its international obligations. 
In more recent cases, the High Court has indicated that a narrow conception
of ambiguity is to be rejected. 
14. The Commission
submits that wherever the language of the statute is susceptible to a
construction that is consistent with the terms of the relevant international
instrument and the obligations that it imposes on Australia, that construction
must prevail. Although it is open to the Australian Parliament to legislate
inconsistently with these norms, ordinary processes of statutory construction
mean that a domestic statute is to be interpreted and applied as far as
its language admits so as not to be inconsistent with established rules
of international law. In other words, where the text of a statute is susceptible
to a construction consistent with the terms of the international instrument
and general international law, then courts and tribunals should adopt
considerations apply with even more force when one is dealing with a statute
such as the Migration Act 1958, that seeks to implement Australia's obligations
under international human rights instruments (being the Refugees Convention
1951 and the Optional Protocol relating to the Status of Refugees 1967).
Article 19(2) of the ICCPR
16. The term
"conduct" in section 91R(3) appears to encompass all forms of
expression, including oral, written or artistic communication. In those
circumstances, it is relevant to note that article 19(2) of the ICCPR
have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
19(3) of the ICCPR permits certain limitations on the right to freedom
of expression, including such restrictions as are "necessary
the protection of public order". Public order may be defined
as "the sum of rules which ensure the peaceful and effective functioning
of society". 
18. The notion
that any such limitations should be "necessary" for the protection
of public order requires that they be "proportional" in intensity
and severity to that purpose.  This means that:
[with the rights conferred by article 19(2)] must be interpreted narrowly
in cases of doubt 
The United Nations
Human Rights Committee has indicated that the principle of proportionality
must be applied in the context of article 19 of the ICCPR so as to "tightly
constrain" the limitations permitted by article 19(3) that would
otherwise destroy the right to freedom of expression. 
19. The effect
of section 91R(3) is to undermine the right to freedom of expression by
withdrawing the fundamental protection of the Refugees Convention, protection
from refoulement (considered further below in para 24), for certain
conduct engaged in while in Australia.
20. The Commission
submits that, having regard to the Second Reading Speech in relation to
the Migration Legislation Amendment Act (No.6) 2001 and the principle
that legislation should be construed consistently with Australia's international
obligations, this Tribunal should accept the following propositions:
- In enacting section
91R(3), Parliament was seeking to address situations in which the applicant
for a protection visa engages in conduct in the nature of a "deliberate
contrivance"  (in other words, where the
applicant deliberately attempts to set up a fraudulent claim).
- In light of the
fact that section 91R(3) has the potential to impinge upon freedom of
speech and in the absence of a contrary intention, it should be assumed
that Parliament did not intend to go beyond that limited purpose, which
may be characterised as a purpose of protecting "public order"
within the meaning of article 19(3) of the ICCPR.
- As such, the
term "purpose of strengthening the person's claim" in section
91R(3) should be interpreted narrowly and strictly confined to "fraudulent
purposes". Any broader interpretation than that advanced above
would disproportionately impinge upon the rights conferred by article
19(2) of the ICCPR.
- It is further
submitted that conduct is only to be disregarded under section 91R(3)
where any such fraudulent purpose is the sole purpose for which a person
engaged in that conduct. This follows in part from the singular language
employed in section 91R(3) (which refers to "the purpose").
Such a construction is also consistent with article 19 of the ICCPR,
in that it represents an appropriately proportionate means of achieving
the desired end of eliminating "deliberately contrived claims"
without unduly obstructing freedom of expression. Finally, such a construction
is consistent with the material in the second reading speech which indicates
that the section is directed at actions that are "done just
to strengthen claims for protection" 
Convention Relating to the
Status of Refugees
21. The Commission
submits that the propositions outlined above regarding the construction
of section 91R(3) are further supported by established domestic law as
well as considerations arising from the Convention Relating to the Status
of Refugees 1951 and the Optional Protocol Relating to the Status of Refugees
22. The Commission
notes that there has been some controversy as to whether a person's entitlement
to protection as a refugee "sur place" under the Convention
Relating to the Status of Refugees 1951 (read with the Optional Protocol
relating to the Status of Refugees 1967) is conditioned by a requirement
that any activities said to found a "sur place" claim be undertaken
in good faith. After reviewing the conflicting international and Australian
authorities, the majority of the Full Federal Court in Mohammed v Minister
for Immigration and Multicultural Affairs concluded that there was
no such requirement. 
23. The insertion
of section 91R(3) obviously alters the position taken by the Full Court
as regards an application for a protection visa under the Migration Act
1958. However, in construing that section it must be assumed, in the absence
of a contrary indication, that Parliament did not intend to depart entirely
from established domestic law and Australia's international obligations
under the Convention Relating to the Status of Refugees 1951 and the Optional
Protocol relating to the Status of Refugees 1967. Indeed, the passage
from the Second Reading speech extracted above indicates that Parliament
proposed to adhere to the terms of those international instruments.
24. It is
established law in Australia that the principle of non-refoulement
is central to determining whether Australia has "protection obligations
under the Refugees Convention as amended by the Refugees Protocol"
under s.26(2) Migration Act.  The principle
has been described as the "engine room" of the Refugees Convention,
 and requires that a person not be returned to a
country in which they face persecution.
91R(3) conflicts with this principle by requiring, in certain circumstances,
that a decision-maker ignore conduct undertaken within Australia (such
as the public expression of political views) which may expose a person
to persecution if they are returned to a country. Consequently, the Commission
submits that the section should be read as narrowly as possible so as
to avoid undue inconsistency with this central principle of non-refoulement.
26. The Commission's
submission is further supported by accepted interpretations of the good
faith limitation as that concept is understood in international jurisprudence.
 It is relevant to note that even the proponents
of a "good faith" requirement have been careful to limit its
extent. By way of example, Grahl-Madsen has described that limitation
in the following terms:
If a person
has committed some act and as a result is liable to persecution because
the authorities of his home country read a political motivation into
his action, we have a repetition of the theme that the behaviour of
the persecutors is decisive with respect to which persons shall be considered
refugees: he is in fact a (potential) victim of persecution 'for reasons
of (alleged or implied) political opinion' and may consequently invoke
the Convention on an equal footing with those who were motivated by
true political beliefs. But we may have to draw a distinction among
the former, between those who unwittingly or unwillingly have committed
a politically pertinent act, and those who have done it for the sole
purpose of getting a pretext for claiming refugeehood. The former may
claim good faith, the latter may not. The principle of good faith implies
that a Contracting State cannot be bound to grant refugee status to
a person who is not a bona fide refugee (emphasis added). 
27. That passage
is consistent with the construction of section 91R(3) advanced above by
The following statutory
functions of the Commission are relevant to the human rights of people
applying for protection visas under the Migration Act 1958:
(i) where the Commission
considers it appropriate to do so with the leave of the court hearing
the proceedings and subject to any conditions imposed by the court,
to intervene in proceedings that involve human rights issues (section11(1)(o)
of the HREOC Act);
(ii) to examine
enactments and (when requested to do so by the Minister) proposed enactments
to ascertain whether they may be, are, or would be inconsistent with
or contrary to any human right and to report to the Minister the results
of any such examination (section 11(1)(e) of the HREOC Act);
(iii) to inquire
into any act or practice that may be inconsistent with or contrary to
any human rights (section 11(1)(f) of the HREOC Act);
(iv) to promote
an understanding and acceptance, and the public discussion, of human
rights in Australia (section11(1)(g) of the HREOC Act);
(v) to undertake
research and educational programs, on behalf of the Commonwealth, for
the purpose of promoting human rights (section11(1)(h) of the HREOC
(vi) to report
to the Minister as to the laws that should be made by the Parliament,
or action that should be taken by the Commonwealth, on matters relating
to human rights (section 11(1)(j) of the HREOC Act);
(vii) to report
to the Minister as to the action (if any) that needs to be taken by
Australia in order to comply with the provisions of the International
Covenant on Civil and Political Rights, of the Declarations (being
the Declaration of the Rights of the Child, the Declaration
on the Rights of Disabled Persons, the Declaration on the Rights
of Mentally Retarded Persons) or of any relevant international instrument
(defined as the Convention on the Rights of the Child and the
Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief) (section 11(1)(k)
of the HREOC Act); and
(viii) to do anything
incidental or conducive to the performance of any of the preceding functions
(section 11(1)(p) of the HREOC Act).
For the purposes
of the above provisions, the phrase "human rights" is defined
in section 3 of the HREOC Act to mean the rights and freedoms recognised
in the international instruments referred to in paragraph (vii) above.
The following are
relevant activities undertaken pursuant to the Commission's functions
under the Human Rights and Equal Opportunity Act 1986:
Inquiry into Children in Immigration Detention, announced 28 November
2001, to be conducted in 2002.
- Submission to
the Senate Legal and Constitutional Committee Inquiry into Migration
Legislation Amendment Bill (No.6) 2001.
- Human Rights and
International Law implications of Migration Bills, briefing paper, 21
September 2001. *
- Human rights violations
at the Port Hedland Immigration Processing Centre; HRC Report No. 12,
28 November 2000. *
- Report on the
Human Rights Commissioner's Visit to Curtin IRPC, July 2000. *
- Report of an Inquiry
into Complaints of Acts or Practices Inconsistent With or Contrary to
Human Rights in an Immigration Detention Centre, HRC Report No.10, 29
June 2000. *
- Immigration Detention
Centre Guidelines, March 2000. *
- Review of Immigration
Detention Centres, 1998-99. *
- Submissions to
Senate Legal and Constitutional References Committee into Australia's
refugee and humanitarian programmes, May 1999. *
- Those who've come
across the seas: Detention of unauthorized arrivals, report of the Human
Rights and Equal Opportunity Commission into the detention of unauthorised
arrivals in Australia, 1998.
Copies of reports
submissions referred to above and marked with "*" can be found
at the Commission's website: http://www.humanrights.gov.au/human_rights/asylum_seekers/index.html#submission.
This is an edited version of submissions made by the Human Rights and
Equal Opportunity Commission in a case before the Refugee Review Tribunal
in January 2002. The submissions have been edited to avoid identifying
the identity of the applicant and the particular details of the applicant's
See section 420(2) Migration Act 1958.
Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan
Levy v State of Victoria (1997) 189 CLR 579 at 603 per Brennan
Levy v State of Victoria (1997) 189 CLR 579 at 604 per Brennan
See section 15AB(1) of the Acts Interpretation Act 1901 (Cth).
Adopted by UN General Assembly 16 December 1966. Signed for Australia
18 December 1972. Instrument of ratification, with declarations and reservations,
deposited for Australia 13 August 1980. Entry into force for Australia
13 November 1980 (UNTS 1197 p411).
Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856)
Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine
NL v Victorian Coal Miners' Association (1908) 6 CLR 309; Zachariassen
v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation
of Statutes 7th Ed, 1929, at 127.
Murray v Charming Betsy (1804) 2 Cranch 64, 118; also United
States v Fisher (1805) 2 Cranch 390 and the authorities cited in footnote
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.
Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ
and McHugh J; also Minister for Foreign Affairs and Trade v Magno
(1992) 37 FCR 298 at 304 per Gummow J.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR
273 at 287 per Mason CJ and Deane J. Generally A Simpson & G Williams,
'International Law and Constitutional Interpretation' (2000) 11 Public
Law Review 205 at 208; J Spigelman, 'Access to Justice and Human Rights
Treaties' (2000) 22 Sydney Law Review 141 at 149.
Minister for Immigration and Multicultural Affairs v Thiyagarajah
(1997) 151 ALR 685 at 693 and 697 per von Doussa J.
Joseph S "The International Covenant on Civil and Political Rights"
OUP 2000 at p396, para [18.26].
See the decision of the United Nations Human Rights Committee in Gauthier
v Canada 633/95. The United Nations Human Rights Committee is the
United Nations human rights treaty body created under article 28 of the
ICCPR. Amongst other things, the United Nations Human Rights Committee
hears complaints submitted by individuals under the Optional Protocol
to the ICCPR. While the decisions or 'views' of the United Nations human
rights treaty bodies are not binding on this Tribunal, Australian courts
and tribunals give weight to the views of specialist international courts
and the human rights treaty bodies established to supervise implementation
by States parties of their obligations under the provisions of particular
human rights treaties. See, as examples of references to the jurisprudence
of human rights treaty bodies by Australian courts: Mabo v Queensland
(No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and
McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307
per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655
at 665 para  per Kirby J; Commonwealth v Bradley (1999) 95
FCR 218, per Black CJ at 237; Commonwealth v Hamilton  108
FCR 378 per Katz J at p387, paragraph .
M, "The UN Covenant on Civil and Political Rights", NP
Engel 1993 p351, para .
See the decision of the United Nations Human Rights Committee in Faurisson
v France (550/93), particularly the opinion of Mr Lallah at paragraph
13. See also S Joseph, op cit, at p392, paragraph [18.18].
See the passage from the Second Reading Speech in relation to the Migration
Legislation Amendment Act (No.6) 2001 extracted above.
 FCA 868 (28 June 1999), see Spender J at  and French J at ,
cf Carr J at .
See, for example, Minister for Immigration and Multicultural Affairs
v Thiyagarajah (1997) 151 ALR 685, Rajendran v Minister for Immigration
and Multicultural Affairs (1998) 86 FCR 526.
Minister for Immigration and Multicultural Affairs v Al-Sallal
(1999) 167 ALR at 185.
See Commonwealth v Hamilton  108 FCR 378 per Katz J at p385,
paragraph  and Koowarta v Bjelke-Peterson (1982) 153 CLR 168
at 264-5 per Brennan J.
Grahl-Madsen A, "The Status of Refugees in International Law",
Vol 1, Sijthoff Leyden, 1966 pp251-52. See to similar effect the reasons
of Gummow J in Somaghi v MILGEA (1991) 31 FCR 100 at pp116-8.
updated 6 March 2002.