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

International Law Sources

Journal Indexes and Articles

Current Awareness

Conference and Seminar Papers

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.