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RC Australasian report June 2004

June 18th, 2004
I'm pleased to report that our third Australasian Chapter meeting of the IARLJ went very well. The program was arranged over two days.

On the first day (Tuesday 8 June 2004), the 14-strong delegation from the RSAA, plus a Malaysian lawyer whose visit was arranged by Paul White (now UN Protection Officer in Kuala Lumpur), participated in a study program. This involved the sharing of information on document examination and fraud (of the sort that we may encounter with refugee claimants); and the latest country information on Iran to better inform decisions about Iranian asylum-seekers.

The Australasian Chapter met on Tuesday 8 June: I was in the chair.

We heard a report on the major issues which confronted the RSAA over the last year or so from its chair, Ema Aitken, with a brief response from the Principal Member of the RRT, Steve Karas.

I shared the news about other IARLJ activities as conveyed to me in the President's report or through my recent participation on the executive. I also conveyed the best wishes of the new Americas chapter, as emailed to our chapter by James Simeon, and put forward his idea that we stagger our regional meetings in order to enable some cross-regional attendance. We agreed that we will discuss this further with James in Stockholm, noting that our next Australasian chapter meeting would be in 2006 in New Zealand.

There was great interest in the next international conference in Stockholm, and questions about when a program will be ready. There was eagerness to see a program as soon as possible. Ideas were put forward about possible topics that could be covered (if it is not too late for such suggestions). Obviously, the topic of making refugee decisions in an age of heightened security concerns presented itself, and could spawn a number of sessions. For example, we could examine the relationship between state security forces and the refugee determination process - an issue that has already confronted several jurisdictions.

In light of the presumed conclusion of several armed conflicts - for example, Afghanistan and Iraq - and the establishment of civilian governments, it would be timely to look at the cessation clause in the Refugee Convention and see how states are applying this cessation clause to those who were offered some temporary protection.

Justice North reminded us that there had been interest in his idea (put forward in Berne) about an international adjudicative body to discuss points of the construction of the Convention. Is it possible to further this idea in Stockholm? He is prepared to write a paper on the issue.

Members expressed themselves willing to put forward or respond to ideas about the international conference in order that it reflect a truly world view.

IARLJ Seminar 9 June 2004

The conference was admirably chaired by Justice Tony North.

The opening address was given by the Chief Justice of the Federal Court of Australia, who gave us a very comprehensive insider's view of the management of the refugee case load within the appellate courts - a load which has become an increasingly major part of the total number of cases there. He was followed by a very lively lecture from Dr Sandra Hale, who studies and lectures on the art/science of interpreting and translating. She examined the question of accuracy in interpretation, not something necessarily achieved by strict word-by-word interpretation.

The UNHCR Regional Representative looked at the declining number of refugee applications over the past year or so in western countries, with particular attention to Australia and New Zealand. Do these declining numbers indicate a general lessening in the outflow of refugees, or are developed countries simply more adept at preventing people from making refugee claims? He noted significant new caseloads emerging from Africa. His concern for a compassionate treatment of refugees or asylum-seekers was taken up by Margaret Piper from the Refugee Council of Australia, with the presentation of a well-thought-out proposal to allow the Refugee Review Tribunal to determine whether a person is in need of complementary protection, rather than leaving it to Ministerial discretion as at present.

The afternoon was devoted to a stimulating examination of a recent Australian High Court case, which overturned a Tribunal decision that two homosexual men could return to Bangladesh and live "discreetly" as they had before. The first speaker, Wayne Morgan from the Australian National University, argued fiercely in favour of upholding individual human rights, focussing specifically on sexuality rights. Rodger Haines QC, following him, gave a thorough and elegant analysis of the High Court decision which he found to have reached the right conclusion but for the wrong reasons. Rodger also reminded us of the importance of returning to the language of the Convention, especially in jurisdictions where the Convention has been incorporated into domestic law, sometimes with changes of language. For example, the Australian Migration Act talks of "persecution" (which may send decision-makers looking for concrete examples of past harm) rather than the original "being persecuted" in the passive voice - which directs the decision-maker's mind correctly to the "well-founded fear of being persecuted".

Lively discussion about the sessions, and the ideas that they prompted, continued during drinks afterwards and, indeed, for some time after that. In all, I felt that the day furthered the aims of the IARLJ in providing a meeting point where those involved in refugee law decisions could come together, deepen our understanding and appreciation what the other decision-makers do in their various jurisdictions, and extend our knowledge of refugee law.

Sue Zelinka

 

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