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East Timorese people seeking asylum in Australia may be Portuguese citizens

PETER THOMPSON: Well, Paul Keating has again stressed the importance of Australia's relationship with Indonesia as a fierce row has broken out over refugee applications from East Timorese. The Federal Government says more than 1000 East Timorese asylum seekers in Australia may have Portuguese citizenship and should go to Portugal. Off with you! It's a position that's been described as hypocritical by political opponents and some within the Labor Party because Australia recognised Indonesian sovereignty over the former Portuguese colony 16 years ago.

The leading international lawyer at the Australian National University in Canberra, JP Fonteyne, says it appears the Federal Government has prematurely gone into panic mode and he's speaking, now, to Pru Goward in our Canberra studio.

PRU GOWARD: Well, let's sort out the competing legal principles, here. First of all, is the Government right in saying that as a matter of fact Portugal's own domestic legislation does regard the East Timorese as its citizens and therefore will allow them to settle in Portugal, end of debate? They have somewhere to go?

JEAN-PIERRE FONTEYNE: Well, if we assume that the Government is correct as far as Portuguese domestic law is concerned - and I am, you know, not sure that that is, indeed, the case; it may or may not be right - then the position taken by the Government in relation to the status of the individuals in question as non-refugees is probably correct.

PRU GOWARD: Yes. Now, let's go back to that a bit more carefully. The Attorney-General's Department apparently has investigated Portuguese domestic law and is confident that this is the case, but that in any case it is worth - I guess, ultimately there'll be some sort of challenged to it to test Portuguese law - and that there are very few East Timorese who wouldn't be covered by Portuguese citizenship.

JEAN-PIERRE FONTEYNE: In which case, quite clearly, they do not qualify for refugee status anywhere else. I mean, the definition of refugees contained in the 1951 convention, which is the benchmark of what the obligations of states are in relation to refugees, and what the rights of refugees are, specifies that to be a refugee you need to satisfy, basically, four conditions. You have to have a reasonable fear. It has to be fear of persecution. The persecution must be because of one of five listed reasons, and finally - and this is the important point in our case - the person must be unable, or unwilling, because of that fear to 'enjoy the protection of his or her state of nationality'.

Now, if the people are Portuguese, then even if they have dual nationality, say Indonesian and Portuguese, then they can still enjoy 'the protection' of Portugal, and provided Portugal is, indeed, prepared to take them, it means that they cannot possibly qualify for refugee status.

PRU GOWARD: All right, now, two questions: what do you know about Portuguese domestic law, and what it says about the East Timorese; and secondly, what is the chance of Portugal, even though its law might say, 'We are obliged to take the East Timorese,' saying, 'Well, actually we don't want you, go away.'?

JEAN-PIERRE FONTEYNE: I don't know what the situation is under Portuguese law, in all honesty. It is correct to say that it is a matter, entirely, of domestic jurisdiction as far as Portugal is concerned. It is a well established principle of international law that nationality is determined by the domestic law of the state whose nationality is in question, subject to some minor qualifications in relation to minimum standards, the Notrebaum(?) case of the International Court of Justice, et cetera. But that probably doesn't enter into account in this particular situation. So, I don't know what the situation actually is under Portuguese law, but assuming that our Attorney-General's Department is, indeed, correct then in principle Portugal would be under an obligation to take back its nationals.

If, on the other hand, Portugal were to decide, despite what its obligations are to take them back, not to take them back, then the situation changes dramatically because then these people are not able to enjoy the protection of either of the states of nationality: Indonesia, from which they're fleeing; Portugal, which would be there second nationality, and hence they would then possibly qualify as refugees which means we would have an obligation to actually allow them access.

PRU GOWARD: But what you've just described is a long process.

JEAN-PIERRE FONTEYNE: It is a complicated process. It is not simple. What I take issue with in relation to the statement that was made by Senator Evans, for example, is that if these people, indeed, are Portuguese nationals, then we do not have to accept them as refugees, but we could, of course, let them stay here on humanitarian grounds. That's not quite correct because if they have Portuguese nationality, but the Portuguese refuse to take them back, then we still have an obligation to let them stay here as refugees.

PRU GOWARD: Sure, but that is a long way away, because we haven't tested Portuguese law or Portuguese Government wishes, have we?

JEAN-PIERRE FONTEYNE: And it is very difficult to test that. I mean, all that is really involved is the Portuguese saying 'no', and that's the end of that. How would we test it? I mean, short of trying to take Portugal to the International Court of Justice, and that's a very, very long shot indeed, I think, ultimately, the whole question is in the hands of the Portuguese.

PRU GOWARD: All right. Now there is a second legal principle involved here and that is, as the critics of the Government say, the fact that we recognised Indonesian sovereignty in East Timor 16 years ago. Explain what difference that could make to the position of the East Timorese .. the people seeking refugee status in Australia.

JEAN-PIERRE FONTEYNE: None, really. I don't think it makes any difference whatsoever, and I see no ....

PRU GOWARD: Now, why is that?

JEAN-PIERRE FONTEYNE: I see no legal contradiction between the position which we've taken in the International Court of Justice - for example, in the Timor Gap Treaty case which was decided in favour of Australia on what you could term procedural grounds, really - I see no contradiction between that position of the Government and the question of whether or not these people would be able to be regarded as Portuguese nationals. They are two separate issues, two different issues.

PRU GOWARD: Are they?

JEAN-PIERRE FONTEYNE: There is no legal contradiction between them.

PRU GOWARD: So, just because we recognise Indonesia as .. the Indonesian invasion of East Timor, doesn't mean that therefore, in fact, that we consider the East Timorese Indonesian citizens? I mean, that's the argument, isn't it: that because we think Indonesia's invasion was valid, that therefore these are Indonesian citizens, not Portuguese, and therefore we are obliged to take them as refugees?

JEAN-PIERRE FONTEYNE: No. To say that they have Portuguese nationality under Portuguese law doesn't mean that we are saying that are not Indonesian citizens. There is such a thing as dual nationality and so the situation would be that we would regard these people, eventually, as having dual nationality: Indonesian because under Indonesian law they would be Indonesian nationals; Portuguese because under Portuguese law they are Portuguese nationals. And so they are dual nationals, and that is exactly where the issue arises of their not having to be refugees because they have Portuguese nationality as well. And as long as Portugal, in fact, is prepared to take them back ....

PRU GOWARD: Yes.

JEAN-PIERRE FONTEYNE: ... it means they would not be refugees. They wouldn't qualify for that status.

PRU GOWARD: Now, as a lawyer, just explain to me: how do we test the Portuguese Government's intentions on the East Timorese? How do we find out whether they will accept them as their citizens or not?

JEAN-PIERRE FONTEYNE: We take a few of these refugee applicants, put them on a plane to Portugal and find out whether the Portuguese let them disembark, basically.

PRU GOWARD: Now, that would not be a ....

JEAN-PIERRE FONTEYNE: I mean, that's, in fact ....

PRU GOWARD: That's what you'd have to do, isn't it?

JEAN-PIERRE FONTEYNE: Well, in a way. I mean, the way it would actually happen is that, you know, our Department of Foreign Affairs would contact the Portuguese embassy here and say, 'Look, you know, we have this bunch of people here. As far as we can tell they are Portuguese nationals. We are about to put them on the plane. Will you let them disembark?' If the Portuguese come back and say, 'No, way. We'll send them straight back, you know, to Sydney or Melbourne, or wherever you ship them out from,' then I think, you know, logically, what will happen is that they will not be put on a plane ....

PRU GOWARD: Right.

JEAN-PIERRE FONTEYNE: ... I assume.

PRU GOWARD: Quite an interesting legal tussle, isn't it? Thank you very much for joining us this morning, JP Fonteyne.

JEAN-PIERRE FONTEYNE: You're welcome.

PRU GOWARD: JP Fonteyne, who is an international lawyer who has specialised in refugee law at the ANU.

PETER THOMPSON: Thank you Pru.