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Researching the Legal Aspects of Asylum Seekers and Refugees in Australia, Canada, and the United Kingdom

 

By Colin Fong[1]

 

Colin Fong is a part time lecturer at the University of Technology, Sydney and the University of New South Wales, in their law schools and has also taught at the law schools of the University of Sydney and the University of Notre Dame Australia. Colin worked as a librarian with the Australian Taxation Studies Program, now the Australian School of Taxation (Atax), and with a large Sydney law firm. He has written extensively on legal and taxation research.

 

Published November 2007
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Table of contents

 

Introduction

Primary Sources

Acts of Parliament

Regulations

Judgments

Secondary Sources

Government Reports

Monographs

International Law Sources

Journal Indexes and Articles

Current Awareness

Conference and Seminar Papers

Multimedia Sources

Theses

Organizations

Web Resources

 

 

Introduction

 

The aim of this essay is to assist researchers in finding legal information regarding asylum seekers and refugees in Australia, Canada and the United Kingdom. This comparative approach will allow researchers to see both differences and similarities in the different countries' approach to asylum seekers and refugees. The plight of asylum seekers and refugees in Australia, Canada and the United Kingdom is the subject of many laws, judgments and commentaries.

 

As one of many cartoons remind us, Jesus and his parents Mary and Joseph were refugees from the reign of King Herod and fled to Egypt. Many of us celebrate this refugee’s birthday every year! Most of the printed publications in this essay, relate to those published in the past ten to fifteen years. In the Australian media, we have misleading references to asylum seekers and refugees as illegal immigrants or queue jumpers. Some of them may well be and others may be valid migrants/refugees.

 

Primary Sources

 

The primary sources consist of numerous federal and state statutes and regulations plus numerous judgments from courts and tribunals

 

Acts of Parliament

 

In Australia, statutory laws dealing with refugees are primarily a federal matter as migration matters come under the federal powers enshrined in the federal Constitution s 51 (xix) regarding naturalization and aliens and (xxvii) regarding immigration and emigration. The main federal act of parliament is the Migration Act 1958 (Cth) and ss 410-473 deal with the operations of the Refugee Review Tribunal. With later sections dealing with possible review by the Federal Magistrates Court, Federal Court of Australia and the High Court of Australia. Section 36 of the Migration Act 1958 (Cth) provides for 'protection visas' and refers to the Refugees Convention, and the Act and Regulations establish the conditions for grant of these and other visas. The concept of 'protection obligations' described in s 36 is a statutory one. Non-citizens without a visa that is in effect are liable to detention and removal from Australia.

 

This act is available via a number of free websites such as ComLaw, the official site for Commonwealth acts and instruments (current, authorized version) or SCALEplus (historical versions) or AustLII (short for Australasian Legal Information Institute), and a number of subscriber sites such as Lawlex, TimeBase, and LawNow via LexisNexis Au. The subscriber sites are sometimes more up to date than the free websites in updating their legislation and vice versa.

 

In Canada, statutory laws dealing with refugees are primarily a federal matter. The main federal act of parliament is the Immigration and Refugee Protection Act 2001, c 27 (Can). This act is available via a number of free websites such as CanLII (short for Canadian Legal Information Institute). Canadian subscriber online resources include QuickLaw via Lexis-Nexis, e-Carswell.

 

In the United Kingdom, the various acts of parliament include the British Nationality Act 1981 (UK) Chapter 61; Immigration Act 1971 (UK) with amendments made by the Immigration and Asylum Act 1999 (UK); Nationality, Immigration and Asylum Act 2002 (UK) Chapter 41 and the Immigration, Asylum and Nationality Act 2006 (UK) Chapter 13. These acts are available via a number of free websites such as BAILII (short for the British and Irish Legal Information Institute) and from subscription websites such as LexisNexis, Westlaw.

 

Regulations

 

In Australia the relevant regulations are the Migration Regulations 1994 (Cth) with specific regulations dealing with various United Nations resolutions for particular countries such as Iraq, Republic of Bosnia and Herzegovina, Republic of Sudan, Sierra Leone, Yugoslavia (Serbia and Montenegro).

 

In Canada the relevant regulations are the Immigration and Refugee Protection Regulations 2002-27 together with Convention Refugee Determination Division Rules and the Refugee Claimants Designated Class Regulations.

 

In the United Kingdom, there are many relevant statutory instruments. There many made under various acts of parliament. A small selection of relevant ones include The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (UK); The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (UK); The Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003 (UK); The Immigration and Asylum Appeals (Procedure) Rules 2003 (UK).

 

Judgments

 

There have been many judgments from both courts and tribunals relating to asylum seekers and refugees. In Australia, there have been a number of refugee cases heard by the High Court of Australia, the Federal Court of Australia and the Refugee Review Tribunal. In the High Court, some of the landmark cases include:

 

  • Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
  • Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
  • Lim v Minister for Immigration (1992) 176 CLR 1
  • Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510
  • Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
  • Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585
  • Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
  • Al-Kateb v Godwin (2004) 219 CLR 562
  • SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009
  • Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 81 ALJR 304
  • One of the landmark Federal Court of Australia cases in the past decade, was
  • Ruddock v Vadarlis (2001) 110 FCR 491, which dealt with the refugees aboard the MV Tampa. Another case was S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 217 which dealt with the Commonwealth’s duty to provide mental health care services to indefinite detainees in immigration detention and Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 which dealt with whether appellants entitled to be regarded as applicants who had properly applied for protection visas.

 

In addition to the print references, these cases are available from AustLII, LexisNexis Au or LexisNexis or Lawbook Online.

 

Some of the above cases have displeased the politicians, some of whom have made verbal attacks on the Federal Court of Australia and its judges. Note what the former Minister for Immigration of 2002 said, and the following is taken from the transcript:

 

Minister: “We have a transparent process for determining whether or not people are refugees. It costs a lot of money.”

Presenter: “There’s no judicial review, is there?”

Minister: “Yes there is.”

Presenter: “There’s appeal to the courts?”

Minister: “There is, but I don’t think there ought to be.[2]

 

Canada

In Canada, many judgments may be found via the free website CanLII, short for the Canadian Legal Information Institute or a subscription website such as Quicklaw via LexisNexis Canada or Westlaw.

 

United Kingdom

In the United Kingdom, the British and Irish Legal Information Institute has compiled a list of Immigration and Asylum Law cases. See the following note: “Through the OpenLaw Project BAILII seeks, with the assistance of law lecturers, to identify cases from the past and to make these freely and openly available on the internet to support legal education”.

 

See also the UK Immigration and Nationality Law Reports.

 

Secondary Sources

 

The range of secondary sources is large from texts to looseleaf services to journal articles. Not only are there legal texts, there are also socio-economic-political works which are an important source for research.

 

Government Reports

 

In Canada, Strangers at the gates: refugees, illegal entrants, and procedural justice, was a report prepared for Employment and Immigration by H Patrick Glenn.

[3] Later reports included Canada, Citizenship and Immigration Canada Building on a strong foundation for the 21st Century: New directions for immigration and refugee policy and legislation,[4] Canada, Citizenship and Immigration Canada Into the 21st Century: a strategy for immigration and citizenship,[5] and Canada, Immigration Legislative Review Advisory Group Not just numbers: a Canadian framework for future immigration.[6]

 

In Australia the Joint Standing Committee on Migration of the Australian Parliament produced a report called Asylum, border control and detention.[7] See also the various Senate Committee reports (click on ones of interest to see full title report – some very important ones here).

 

Then there is Protecting the border: immigration compliance, an annual publication.[8] Philip Flood conducted an independent inquiry to investigate, examine and report on aspects of Australian Immigration Detention Procedures.[9] The Federal Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade made an inquiry into detention centres to assess the human rights conditions[10]. The Select Committee on a Certain Maritime Incident report reviewed four major sets of issues. “They are:(1)the so-called 'children overboard' incident involving the HMAS Adelaide and the vessel known as SIEV 4, and the management of information concerning that incident by the Federal Government and Commonwealth agencies;(2)accountability issues arising from the 'children overboard' incident, including the adequacy of administrative practices in certain Commonwealth agencies, and the accountability framework for Ministers and their staff;(3)other matters arising out of the Australian Defence Force operation 'to deter and deny' asylum seekers from arriving in the Australian migration zone in an unauthorised manner by boat, with particular reference to the vessel now known as SIEV X; and(4) the nature of the agreements reached, the operation and cost of detaining persons in Nauru and Papua New Guinea as part of the so-called 'Pacific Solution."[11] Interpreting the Refugees Convention: an Australian contribution was released in 2002[12], and recently there was the Senate report on the Administration and operation of the Migration Act 1958.[13]

 

In 2004, the Human Rights and Equal Opportunity Commission, produced A last resort? National inquiry into children in immigration detention, written by Vanessa Lesnie and others[14] See also the Inquiry into the circumstances of the immigration detention of Cornelia Rau. Report chaired by Palmer, M.[15]

 

In Australia, the Department of Immigration and Citizenship (formerly, immediately before January 2007, the Department of Immigration and Multicultural Affairs) is administratively responsible among other things for border control and for the entry and settlement of non-citizens, including asylum seekers and refugees.

 

In the United Kingdom, there are many useful reports by the House of Lord Select Committee on the European Union, and the House of Lords/House of Commons Joint Committee on Human Rights.

 

Monographs

 

In Canada, one of the leading texts in this area is Hathaway, JC Law of refugee status[16]. This text is held in many overseas libraries and is used extensively in many common law countries. This work is commonly relied upon within Australia, in particular when it comes to arguments about Australia's international obligations. Allied to this is Canadian immigration and refugee law by Bagambiire, DBN[17], The Refugee Convention by Zambelli, P[18] and The grounds of refugee protection in the context of international human rights & humanitarian law: Canadian & US case law compared, by von Sternberg, MR[19]. Another four titles, though not uniquely Canadian include Critical years in immigration: Canada and Australia compared by Hawkins, F[20], edited by Adelman, H et al Immigration and refugee policy: Australia and Canada compared,[21] edited by James Hathaway Reconceiving international refugee law,[22] and Humanitarianism, identity, and nation: migration laws of Australia and Canada by Catherine Dauvergne.[23]

 

In Australia although not as extensive as Hathaway, we have Crock, M & Saul, B Future seekers: refugees and the law in Australia,[24], Crock, M; Saul, B and Dastyari, A Future seekers II: refugees and irregular migration in Australia[25], Crock, M Immigration and refugee law in Australia[26], Crock, M (ed) Protection or punishment?: the detention of asylum-seekers in Australia,[27] Germov, R & Motta, F Refugee law in Australia[28], The Refugees Convention 50 years on: globalisation and international law, edited by Susan Kneebone,[29] Vrachnas, J et al Migration and refugee law: principles and practice in Australia[30], Pickering, S Refugees and state crime[31], Mary Crock Seeking asylum alone: a study of Australian law, policy and practice regarding unaccompanied and separated children [32], Taylor, S (ed) Nationality, refugee status and state protection : explorations of the gap between man and citizen[33] and Bagaric, M et al Migration and refugee law in Australia: cases and commentary [34].

 

On a more polemical view there are Asylum seekers: Australia's response to refugees by Don McMaster[35] , Australia's treatment of refugees and asylum seekers by Peter Mares,[36] People smugglers: the people smuggling industry and the secret cost to Australia by Greg Clancy[37], Refugees and the myth of the borderless world by William Maley et al.[38], Immigrants, refugees and asylum seekers by Helen Hughes,[39] People smugglers: the people smuggling industry and the secret cost to Australia, [40] Frank Brennan, et al Refugees, morality and public policy: the Jesuit Lenten seminars 2002 and 2000[41], Frank Brennan, Tampering with asylum: a universal humanitarian problem [42] Eve Lester Asylum seekers in Australia[43] Heather Tyler Asylum: voices behind the razor wire[44] Diane Barnes edited Asylum seekers and refugees in Australia :issues of mental health and wellbeing,[45] Klaus Neumann Refuge Australia: Australia’s humanitarian record[46], David Marr & Marian Wilkinson Dark victory,[47] Tony Kevin A certain maritime incident: the sinking of SIEV X [48], Michael Gordon Freeing Ali: The human face of the Pacific Solution[49], Savitri Taylor, (ed) Nationality, refugee status and state protection: explorations of the gap between man and citizen.[50] For an overseas perspective, see Caroline Moorehead Human cargo: a journey among refugees[51].

Related works include Interpreters' handbook, compiled by the Refugee Review Tribunal[52]. Parenting in Australia: a resource and guide to assist facilitators in providing information to newly arrived refugee parents written by the members and staff of TRANSACT.[53] See other RRT handbooks and guidelines (e.g. on credibility)

 

In the United Kingdom, there are publications, such as Kate E Tunstall (ed) Displacement, asylum, migration : the Oxford Amnesty Lectures 2004,[54] Ann Bernstein and Myron Weiner (ed) Migration and refugee policies: an overview,[55] Michael Dummett On immigration and refugees, [56].

 

International titles include Feller, E; Türk, V & Nicholson, F (eds) Refugee protection in international law: UNHCR's global consultations on international protection,[57] Goodwin-Gill, GS & McAdam, J The refugee in international law[58], Hathaway, JC The rights of refugees under international law[59], Phuong, C The international protection of internally displaced persons,[60] McAdam, J Complementary protection in international refugee law,[61] Foster, M International refugee law and socio-economic rights: Refuge from deprivation,[62] UNHCR State of the World’s Refugees (various edns, latest is 2006); Nicholson, F and Twomey, P (eds) Refugee rights and realities: evolving international concepts and regimes,[63] Calavita, K Immigrants at the margins: Law, race, and exclusion in Southern Europe,[64] Weis, P The Refugee Convention, 1951: the travaux préparatoires analysed, with a commentary;[65] and The Collected travaux préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees, compiled by Alex Takkenberg & Christopher C Tahbaz.[66] Another source is the Handbook on procedures and criteria for determining refugee status: under the 1951 Convention and the 1967 Protocol relating to the status of refugees .[67]

 

International Law Sources

 

Readers need to be aware of treaties and international law sources. One of the key treaties in this area is the Convention relating to the Status of Refugees[68] and its 1967 Protocol relating to the Status of Refugees. Another key source is the Handbook on procedures and criteria for determining refugee status: under the 1951 Convention and the 1967 Protocol relating to the status of refugees .[69]

These are 'primary sources' (of law and guidance respectively) from an international law perspective. In this context, the Refugees Convention and Australia's other international obligations are only directly part of Australian law to the extent that they are given effect in legislation (although they can influence questions of statutory interpretation).

 

Journal Indexes and Articles

 

The major Australian and overseas journal indexes include:

 

Specialized journals include:

 

Full text journal articles may be found in both print and electronic sources. For electronic Australian legal journals, see AustLII, LexisNexis Au, AGIS Plus Text and Lawbook Online. For Canadian electronic legal journals see Quicklaw via LexisNexis Canada or LexisNexis. For United Kingdom electronic legal journals see LexisNexis and Westlaw.

 

Current Awareness

 

There are many sources for current awareness ranging from newspapers, to radio and television broadcasts, websites.

 

In Australia current newspapers and other news sites include:

 

In the United Kingdom current newspapers and other news sites include:

 

Conference and Seminar Papers

 

There have been a few conferences and seminars on refugees, of which one of the most recent is Offshore processing of asylum seekers: Australia's obligations, held on 25th November, 2006 at the University of Technology, Sydney. See also Moving on: forced migration and human rights, (Faculty of Law, University of Sydney), held 22 November 2005 at NSW Parliament House. The proceedings of this are forthcoming in J McAdam (ed) Moving on: forced migration and human rights.[70]

 

Multimedia Sources

 

Australia

·     Asylum seekers [videorecording]: detainee riots, West Melbourne, Vic, Media Monitors, 2002

·     Seeking asylum (videorecording), [Australia]: Piper Films, c2002

·     Tyler, Heather Asylum [sound recording]: voices behind the razor wire, Sydney, Australian Listening Library, 2003

·     The Asylum Seekers [sound recording], Australia: ABC Radio National, c2003

·     Masters, Anthony Asylum [sound recording], North Hobart, Hear A Book, 2003

·     Tampa and beyond (video and notes), Bendigo, Vic, Video Education Australasia, 2002

·  The Tampa issue [electronic resource]: all the significant cases and relevant legislation included on CD, [Sydney], Lawbook Co, 2002

 

Canada

 

Theses

 

There are many theses and one possible source is the Australian Digital Theses Program. Overseas there are a number of other sites, some of which have full text such as the UNSW Library. An example is Charles Sinclair's PhD thesis Who would want to be a refugee? A comparative analysis of refugee policy and law in Australia and Canada.[71]

 

Many Canadian and other theses may be found by going to UMI ProQuest.

 

Organizations

 

In Australia there are:

 

In Canada there are:

 

In the United Kingdom there are:

 

Web Resources

 

For refugee status law in different countries, there's an updated Guide to Country Research for Refugee Status Determination

 

Asylum and Refugee Resources is a subsection of the University of Minnesota Human Rights Library, which is one of the largest collections of human rights documents on the Internet.

 

Mason, Elisa Guide to International Refugee Law Resources

 

Harris-Rimmer, S Recent developments in refugees and immigration law 2005, Canberra, Parliament House, Law & Bills Digest Section, 2005. This summarises recent developments and key issues in legal debates about refugee and immigration law in Australia. It provides links to web sites and material covering reports, case law, inquiries and legislation.

 

University of New South Wales Library Refugee Research Subject Guide

 

LEGENDcom is an electronic database of migration and citizenship legislation and policy documents which is available to members of the public on a subscription basis compiled by the Australian Department of Immigration and Citizenship. It contains current and historical versions of the following:

 

See also the Australia Department of Immigration and Citizenship Managing Australia's borders: Fact sheets - Australia Department of Immigration and Citizenship Fact Sheet 61: Seeking asylum within Australia (2007)

 

Further reading:

 

 



[1] Acknowledgement: To Charles Beltz, Counsel, Australian Government Solicitor for his personal suggestions and to Jane McAdam, University of New South Wales for her comments and additions. All errors are my responsibility.

[3] Cowansville, Québec, Canada, Editions Y Blais, 1992.

[4] Hull, QC, Minister of Supply and Services, 1999

[5] Hull, QC, Minister of Supply and Services, 1994

[6] Ottawa, Citizenship and Immigration Canada, 1997

[7] Canberra, Australian Government Publishing Service, 1994.

[8] 2000 ed., Belconnen, ACT, Dept of Immigration & Multicultural Affairs

[9] This was presented to Parliament on 27 February 2001 and is available here

[10] Available here

[12] Canberra, Dept of Immigration and Multicultural and Indigenous Affairs, 2002

[13] Canberra, The Senate Legal and Constitutional References Committee, 2006

[14] Sydney, Human Rights and Equal Opportunity Commission, 2004

[16] Toronto, Butterworths, 1991

[17] Aurora, Ont, Canada Law Book, 1996

[18] Toronto, Carswell, 1999

[19] Amsterdam, Kluwer Law International, 2001

[20] Kensington, NSW, New South Wales University Press, 1989

[21] Carlton, Vic, Melbourne University Press, 1994

[22] The Hague; M Nijhoff Publishers, 1997

[23] Vancouver, UBC Press, 2005

[24] Annandale, NSW, Federation Press, 2002

[25] Annandale, NSW, Federation Press, 2006

[26] Annandale, NSW, Federation Press, 1998

[27] Annandale, NSW, Federation Press, 1993

[28] Melbourne, Oxford University Press, 2003

[29] Burlington, VT, Ashgate, 2003

[30] Melbourne, Cambridge University Press, 2005

[31] Annandale, NSW: Federation Press, 2005

[32] Leichhardt, NSW, Themis Press, 2006

[33] Leichhardt, NSW, The Federation Press, 2005

[34] Port Melbourne, Cambidge University Press, 2007

[35] Parkville, Vic, Melbourne University Press, 2001.

[36] Sydney, University of New South Wales Press, 2001

[37] St Ives, NSW, Sunda Publications, 2002

[38] Canberra, Dept. of International Relations, Research School of Pacific and Asian Studies, Australian National University, 2002.

[39] St Leonards, NSW, Centre for Independent Studies, c2002

[40] St Ives, NSW, Sunda Publications, 2002

[41] Ringwood, Vic, David Lovell Publishing, 2002

[42] Revised ed, Brisbane, University of Queensland Press, 2006

[43] Kings Cross, NSW, Uniya Jesuit Social Justice Centre, 1998

[44] South Melbourne, Vic, Lothian, 2003

[45] Parramatta, NSW, Transcultural Mental Health Centre, 2003

[46] Sydney, University of New South Wales Press, 2004

[47] Crows Nest, NSW, Allen & Unwin, 2003

[48] Melbourne, Scribe, 2004

[49] Sydney, UNSW Press, 2005

[50] Leichhardt, NSW, The Federation Press, 2005

[51] London, Chatto & Windus, 2005

[52] Refugee Review Tribunal, Canberra, The Tribunal, 1996.

[53] Canberra, TRANSACT, 1998

[54] Oxford, Oxford University Press, 2006

[55] London, Continuum, 2001

[56] London; New York, Routledge, 2001

[57] Cambridge, Cambridge University Press, 2003

[58] 3rd ed, Oxford, Oxford University Press, 2007

[59] Cambridge, Cambridge University Press, 2005

[60] Cambridge, Cambridge University Press, 2004

[61] Oxford, Oxford University Press, 2007.

[62] Cambridge, UK, Cambridge University Press, 2007. The Phuong, McAdam and Foster titles are on specialist areas within international refugee law, rather than more general texts.

[63] Cambridge, Cambridge University Press, 1999

[64] Cambridge, Cambridge University Press, 2005

[65] Cambridge, New York, NY; Cambridge University Press, 1995

[66] 2nd ed, Amsterdam, Dutch Refugee Council, 1990

[67] Geneva, Office of the United Nations High Commissioner for Refugees, [1979]

[69] Geneva, Office of the United Nations High Commissioner for Refugees, [1979]

[70] Oxford, Hart Publishing, 2008

[71] Armidale, NSW, University of New England, 1995