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Migration Legislation Amendment Bill (No.3) 1995



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House: Senate

Portfolio: Immigration and Ethnic Affairs

Commencement: Royal Assent

Purpose

To amend the Migration Act 1958 to:

(a) remove the fertility control policies of a foreign government as a grounds for inclusion in a 'particular social group' as defined in the 1951 Convention Relating to the Status of Regugees, as amended by the 1967 Protocol Relating to the Status of Refugees; and

(b) stop repeat applications for protection visas.

Background

A. Definition of refugee

A refugee is defined in Article 1A(2) of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees as one who, inter alia, possesses:

a well founded fear of being persecuted for reasons of ... membership of a particular social group.

Australia has acceded to both the Convention and the Protocol. Section 36 of the Migration Act 1958 states that a criterion for the granting of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention and the Protocol.

A person claiming refugee status by virtue of a well-founded fear of persecution because of membership of a social group must be able to show, first, that he or she possesses a fear of being persecuted. It is not enough that the applicant merely holds such a belief. There must be an objective basis for that fear. There must be a ' real chance' that if the person returns to his or her country of origin, he or she will suffer some serious punishment or disadvantage.

Migration Legislation Amendment Bill (No.3 1995

ndly, the person must be able to demonstrate membership of a particular social group in a Convention sense. 'Young single women'; 'taxi-drivers co-operatives'; 'young working class males of military age'; 'drug-trade informants'; or 'seamen' are considered in the case law not to constitute a 'particular social group'.

On the other hand, the case law suggests, landowners; trade-unionists; people of Chinese ethnicity living in Cambodia; women with more than one child and who are faced with forced sterilisation; lawyers; farmers; members of a linguistic minority and novelists might constitute a 'social group'. 1

The fertility control policies of foreign governments

Report of the Second Human Rights Delegation to China

In its Report of the Second Australian Human Rights Delegation to China, submitted to the Minister for Foreign Affairs, Senator the Hon. Gareth Evans, on 6 May 1993, the Delegation noted that allegations of forced sterilisations in China, particularly in the remote regions and among minorities continue to circulate. 2 The Delegation stated that 'forced abortion or sterilisation was not acceptable in any circumstances and was a clear violation of fundamental human rights.' 3

NG 327 of 1994

In NG 327 of 1994 4 , the Federal Court upheld a decision of the Refugee Review Tribunal (RRT) granting refugee status to a married couple, nationals of the Peoples Republic of China (PRC). The RRT found that the couple was at 'risk of forcible sterilisation by reason of population control policies and practices followed in some parts of China. 5

Both the husband and the wife were born in China. The husband gave evidence that he left China because he feared sterilisation under the Governments One Child Policy. The RRT found that in implementing this Policy coercive measures were sometimes used, including forced sterilisation and abortion. 6 Further, the Tribunal found that a non-consensual procedure which altered a persons reproductive capacity was an act of persecution. 7

A fear of persecution, although well-founded, is itself not a sufficient basis for a successful refugee application. The applicant must show that he or she is persecuted for a Convention reason. In this case, the RRT said the husband belonged to a particular social group, that being 'those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised.' 8

The RRT accepted that forced sterilisation was carried out in the husbands village and that should he be returned to China he had a real chance of being forcibly sterilised. 9 He was, therefore, granted refugee status.

In relation to the wife, the RRT found that she feared sterilisation both for herself and her husband, and that she had a real chance of being forcibly sterilised if returned to China. She was also granted refugee status.

On appeal to the Federal Court the Minister for Immigration and Ethnic Affairs argued:

- the couple was not a member of a particular social group in a Convention sense, in that the defining characteristic of the group was a fear of persecution; and

- that the Tribunal did not consider whether the risk of forcible sterilisation was a consequence of government policy 10 .

Particular social group

In rejecting the Ministers submissions, Sackville J said:

- the concept of a social group is not confined to groups comprising members with an associational interest;

- the perceptions and responses of government are likely, in some cases, to be crucial in determining if a particular social group exists;

- the responses of government might include persecution in a Convention sense; and

- the group does not necessarily have to be defined by reference to innate or immutable characteristics of its members. 11

State responsibility for persecution

In arguments before the Court it was accepted that persecution could occur as a result of the national government promoting or condoning forcible sterilisation or from failing to prevent local authorities from implementing such practices. 12 Sackville J held that the RRT did consider this issue. The RRT also noted that the one child policy had been relaxed in certain urban areas of China and that much depended on the attitudes of the local authorities. 13

The Government's response

On 30 December 1994, the Minister for Immigration and Ethnic Affairs, Senator the Hon. Nick Bolkus, announced that the Government would amend legislation to ensure that claims for refugee status cannot be made on the basis of Chinas one child policy. 14 The current Bill aims to affect that amendment.

The Explanatory Memorandum to the Bill (paragraph 5) states that the decision in NG 327 allows the granting of refugee status on grounds that were never envisaged when Australia ratified the Convention. On the other hand, it might be argued, that the term 'particular social group' was included in the Convention definition as a 'catch-all ground which would plug any gaps in the coverage of the other, more specific, grounds of persecution.' 15

In the Second Reading speech to the Bill, Senator the Hon Robert Ray, said that the Bill:

will not deny access to our protection to a person who seeks it as a member of a pre-existing social group, or on any of the other Convention grounds, who has a well founded fear of persecution because of fertility control policies. What this means is that a person from a particular village or workplace who is subjected to the rogue application of a fertility control policy in a manner which amounts to persecution could still have a claim accepted under the legislation introduced today. 16

It is uncertain how a 'pre-existing social group' should be defined.

Overseas

In Canada similar facts to those in NG 327 were considered in Cheung v Minister of Employment and Immigration 17 . The appellant had left China to avoid being sterilised for violating the single child policy: she had given birth to two children. The Canadian Federal Court of Appeal said that women who have more then one child and are faced with compulsory sterilisation constiute a social group within the meaning of the definition of Convention refugee 18 .

B. Repeat Applications

In the Second Reading speech Senator the Hon Robert Ray said that:

- under the current rules, when a person exhausts an initial application for a protection visa, he or she may lodge a further application to restart the process; and

- repeat applications delay the removal of unsuccessful applicants, and that their use has increased. 19

Senator Ray said that the Minister will retain a discretion to allow a repeat application. For example, should events in the country of origin change since the first application, a repeat application might be warranted. 20

The Explanatory Memorandum (paragraph 8) states that the proposed amendment will increase the 'efficiency of Australia's refugee determination system' and 'minimise ill-founded protection visa applications'.

Since late 1989, 1,255 people have arrived in Australia by small boat and without documentation. 21 Of these, 470 have left Australia, 394 have been approved to remain in Australia and most of the remainder are awaiting final decisions. 22 Most of the arrivals are held in the Port Hedland Reception and Processing Centre. Families are kept together, usually in one or two-bed rooms and food is provided. Medical and educational facilities are also provided.

When applying for a protection visa, an applicant first completes a questionnaire. A case officer from the Department of Immigration and Ethnic Affairs is appointed. Based on information provided by the applicant, and the Department's own information, the case officer either makes a determination or refers the matter to a Minister's delegate. If not satisfied with the decision, the applicant may appeal to the Refugee Review Tribunal (RRT), tasked with conducting reviews on the merits. From the RRT, the applicant may appeal on questions of law only, to the Federal Court, and ultimately to the High Court. 23

Should an applicant only be permitted one application for a protection visa, which seems reasonable in terms of efficiency and fairness to other applicants, it is important that access to legal advice be available at an early stage. However, it has been reported that it would appear to be the Department's practice "at least in the case of boat people, not to allow any outside contact (including with legal advisers) until after the initial interview by departmental officers.' 24

Main Provisions

Item 2 of the Schedule adds new subsections 36(3) and (4) to the Migration Act 1958. Subsection 36(3) abrogates the decision in NG 327 in that it provides that the fertility control policies of a foreign government are not be considered when assessing whether a person belongs to a 'particular social group'. Subsection 36(4) makes it clear that the fertility control policies of the Peoples Republic of China are not to be considered when determining membership of a 'particular social group'.

Item 4 inserts new sections 48A and 48B. Section 48A provides that, subject to section 48B, where the grant of a protection visa has been refused, a non-citizen may not make a further application for a protection visa while in the migration zone. Section 48B provides that the Minister may personally determine that section 48A does not apply if he thinks that is in the public interest to do so.

Endnotes

1 See for example: Morato v Minister for Immigration and Ethnic Affairs (1992) 111 ALR 417 at 432 per Lockhart J.

2 Report of the Second Australian Human Rights Delegation to China 8-20 November 1992, AGPS, Canberra, 1993, p 54. The Delegation included Senator Chris Schacht, the Hon Michael Mackellar MP, Senator Vicki Bourne, Professor Alice Erh-Soon Tay AM, Mr Chris Sidoti, Dr Richard Digby, Mr Ian Russell, Mr Kevin Garrett, Ms Dilber Thwaites and Mr Stephen Huang.

3 ibid.

4 NG 327 of 1994, (unreported) 6 December 1994, Sackville J.

5 ibid, p 1.

6 ibid, p 6.

7 ibid.

8 ibid, p 8.

9 ibid, p 9.

10 ibid, p 11.

11 ibid, p 15.

12 ibid, p 53.

13 ibid, p 9.

14 Senator the Hon Nick Bolkus, Press Release, B93/94, 30 December 1994.

15 S. Taylor, 'The Meaning of 'Social Group': The Federal Court's failure to think beyond social significance', Monash University Law Review, Vol 19, No 2, 1993, p 318.

16 Senate, Parliamentary Debates (Hansard), 31 January 1995, p 36.

17 Re Cheung v Minister of Employment and Immigration, 102 DLR (4th) p 214.

18 ibid, p 215.

19 Senate, Parliamentary Debates (Hansard), 31 January 1995, p 37.

20 ibid.

21 Department of Immigration and Ethnic Affairs, Fact Sheet, 5 December 1994.

22 ibid.

23 For an overview of the determination process, see: Jean-Pierre Fonteyne, 'Refugee Determination in Australia: An overview', International Journal of Refugee Law, 1994, pp 253-264.

24 ibid, p 253.

Dr Max Spry (Ph. 06 2772477)

Bills Digest Service 2 February 1995

Parliamentary Research Service

This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

Commonwealth of Australia 1995.

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Published by the Department of the Parliamentary Library, 1995.