Unconventional behaviour sees government in High Court over refugees


In the style of a sideshow spruiker, Scott Morrison is calling it every which way.

Yet another case touching on the Refugee Convention is pending in the High Court and Morrison is in there with foghorn and dog whistle. In the latest instalment of his weekly hairy-chested chat with Ray Hadley on radio station 2GB, the immigration and border protection minister declared that the “difficulty we have got with the convention is not the document itself but how lawyers and others have interpreted it for the last 50 to 60 years”.


In the next breath he admitted to his fearless interrogator that what started out being a “pretty sensible document, over time has had layer upon layer [of obligations] and it is now being used as a tool by people smugglers to basically run death voyages”.

It doesn’t come much more Morrisonian than that. Lawyers, judges, people smugglers, death voyages. The Refugee Convention is a tool to get people drowned at sea. Thank god the Abbott government is there to save them.

“High Court bid to move asylum goalposts” was The Australian’s perplexing take on the pending argument in the case known as SZSCA. The asylum seeker thus designated is an Afghan Hazara who had been a jeweller but became a truck driver, whereupon he was targeted by the Taliban at checkpoints for allegedly ferrying material linked to construction projects supported and funded by Western governments.

Morrison wants SZSCA to go back to being a jeweller and to go back to Afghanistan. Just to be extra safe he probably should stop being a Hazara.

The minister’s idea is for a refugee convention that says if the refouling government declares you can do a different job or change your ways, then there’s no problem sending you back home. The topic has been examined by the High Court in many different ways on occasions where the government of the day has asked people to give up on fundamental aspects of who they are in order to return to their place of persecution.

1. High Court on 'relocation principle'

We can provide some context to Morrison’s latest heroic mission, starting in 2003 with the High Court decision in S395 (all these cases go by the most fetching forms of anonymity). A homosexual couple from Bangladesh applied for a protection visa. The Refugee Review Tribunal accepted that the men were in a relationship and that it was not possible to live openly as gay men in Bangladesh.


The court also said that asylum seekers are not expected to take reasonable steps to avoid persecution and harm – a notion that would get up Morrison’s nose.


Nonetheless, the tribunal came up with something that fits Morrison’s mission. Homosexual men can have affairs in Bangladesh “provided they are discreet”. Since they had already conducted themselves in a discreet manner at home, then back to Bangladesh they should go.

A majority of the High Court wasn’t convinced. While it said that the tribunal did not impose a requirement that the applicants live discreetly, it failed to consider whether the choice of the two Bangladeshi chaps to live discreetly was a voluntary choice, uninfluenced by the fear of harm. The court also said that asylum seekers are not expected to take reasonable steps to avoid persecution and harm – a notion that would get up Morrison’s nose.

As we might expect, Ian Callinan and Dyson Heydon were among the minority. “The appellants had in fact, and would in all likelihood continue to live, as a matter of choice, quietly without flaunting their homosexuality ... Living as they did when they were not oppressed.” But Michael McHugh, Michael Kirby, Bill Gummow and Ken Hayne all thought that the tribunal was in error by impliedly dividing homosexual men into categories of those discreet and non-discreet.

However finely you slice the argument, Morrison is saying that we should not engage with a refugee convention that protects flaunting by gay Bangladeshis. This amounts to lawyer-driven distortion on behalf of people smugglers.

There was a somewhat similar case in 2007 called SZATV, where the High Court grappled with the circumstances of a Ukrainian journalist who feared persecution because he had written articles exposing government corruption. The Refugee Review Tribunal upheld the decision to refuse him a protection visa, saying that his relocation within Ukraine would be an option, and that “while he may not be able to obtain work as a journalist elsewhere in Ukraine ... he may be able to obtain work in the construction industry, as he has done in Australia”.

The High Court considered the “relocation principle” in some detail and found that the tribunal’s comments amounted to saying that SZATV could move elsewhere in the Ukraine and live “discreetly” so that he wouldn’t be persecuted for his political opinions.

The tribunal’s view amounted to an error of law because it failed to consider what might reasonably be expected should the journalist relocate. Michael Kirby went on to examine the intersection of working in the construction industry and freedom of expression: “It cannot be a reasonable adjustment, contemplated by that convention, that a person should have to relocate internally by sacrificing one of the fundamental attributes of human existence which the specified grounds in the Refugees Convention are intended to protect and uphold.”

If it’s not persecuted gays and journalists, it’s religious minorities.

In a 2004 High Court decision known as S152, it was a Ukrainian man who faced persecution back home because he was a Jehovah’s Witness. The focus here was on state protection from private individuals and theories of persecution in international law.

The discomforting finding was that the Jehovah’s Witness and his wife were not asylum seekers under the convention and that no country can guarantee its citizens will be safe from violence. 

The following year the court looked at the situation of an Iranian national who had converted to Christianity and was baptised in West Papua by a minister of the Uniting Church, finding that it was possible to be a member of that church and be a quietly evangelising Christian in Iran, as opposed to an aggressively proselytising Christian.

Kirby and McHugh were in the minority on that one, with Kirby saying that religion is not simply a private belief, it necessarily involves “manifestations”.

Unlike the case of the gay Bangladeshis, in the Iranian case it seemed acceptable to weigh Christians in categories such as noisy proselytisers or quiet evangelisers.

Morrison is mischievously suggesting that it is the asylum seekers’ lawyers who are doing the tugging and twisting of the Refugee Convention, which, “started out being a pretty sensible document”.

Government lawyers have played their part in this process as well, and the High Court has looked at the convention in the context of the Migration Act on a case-by-case basis. SZSCA is just the latest circumstance dealing with the prospect of asylum seekers returning from whence they came and changing their occupations, beliefs and some of the things about themselves that forced them to flee.

2. How governments seek to circumvent court rulings

If we step back a bit and look at the broader migration law picture coming from the court, the big quantum leaps in jurisprudence have been relatively few and far between.

Since 2001, there have been more than 50 asylum seeker cases before the court, and of those about a dozen have been important or memorable. In 2002, the High Court substantially unstitched the Howard government’s attempts to lock out applicants from the judicial review process, saying that the jurisdiction of the court under the constitution cannot be removed by parliament. In the same year it further circumvented the Migration Act’s limitations of review by finding that failure to accord procedural fairness by the tribunal amounted to a jurisdictional error, which lets the courts in.

The Al-Kateb decision in 2004 was a low point for the court, as it found, by a majority, that the Migration Act permitted the detention without charge of a person until he could be deported, that is, indefinite detention. Justice Hayne described the statute as “intractable”, but Gleeson, Gummow and Kirby in dissent found there was quite a bit of tractability.

The issue came up again in Al Khafaji and once more mandatory indefinite detention was confirmed for an “unlawful non-citizen”.

In 2006 we had QAAH and an attempt to deal with the “changed circumstances” argument. QAAH was a Hazara whose protection visa was refused by the Refugee Review Tribunal on the basis that things had changed for the better in Afghanistan. It showed how the court could tie itself in knots about the Refugee Convention and the Migration Act. A majority said the act does not pose the question whether the changes need to be substantial, effective or durable. Kirby, in the minority, thought the changes for the better would have to be durable.

Not much joy there for poor QAAH.

In 2010, we had the big case called M61, which addressed the 2008 changes to the Migration Act post-Tampa. M61 dealt with offshore processing and the government’s attempt to circumvent judicial review by having processing decisions made by “independent” contractors rather than officials of the Commonwealth.

Once an asylum seeker comes within the jurisdiction of Australia, judicial review of the determinations of the primary decision-maker can take place. Ever since, the government of the day has been at great pains to keep asylum seekers corralled offshore for processing.

In 2011, the court knocked down the Gillard government’s Malaysian solution on the grounds that the minister transferring people to that country didn’t put his mind to the obligations of providing access or protection, or meeting relevant human rights standards.

Early this year, the court decided that the minister didn’t have the authority to cap the number of protection visas.

Usually, unless the legislation or the minister trespass onto the constitutional authority of the court then there will be a frantic effort to amend the Migration Act to overcome any judicially created “lacunae”. It’s a struggle, and some might say a game, were it not for the fact that so many lives are in the balance.

For this minister and this government it’s a war, where the infliction of suffering is part of the armoury. A war with “the last 50 to 60 years” of legal opinion.

Research assistance by Nina Ubaldi.