The International Non-Refoulement Obligation and a Refugee’s Non-Compliance Under the Australian Migration Act of 1958

A recently published case from the Australian Administrative Appeals Tribunal (AAT) analyzes how intentionally false information provided by an applicant should impact refugee protection under the Australian Migration Act of 1958 (“Act”). The Act gives the Minister of Immigration the authority to cancel a visa if the visa application contains false information. However, in AATA Case No. 1607767, the AAT’s opinion articulates a principle stating that false information provided by an asylum seeker does not, under international refugee law, warrant the cancellation of an asylum visa so long as the applicant faces a risk of persecution upon the visa’s cancellation, even if that risk arises from sources different than the risk that the applicant claimed in the application.

Article 31(1) of the 1951 Refugee Convention (“Convention”) forbids a contracting state from imposing penalties on unauthorized refugees “on account of their illegal entry or presence” in that state’s territory, “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” The article indicates that states are prohibited from refusing asylum to a refugee on the ground that he or she illegally presented false information or documentation to gain access into a state’s territory for submitting a refugee claim. Following this interpretation, in Akinmade v. Immigration and Naturalization Service, the United States Court of Appeals for the Ninth Circuit held that a refugee cannot be denied protection solely because he or she illegally used false information to enter the United States for the purpose of applying for asylum.

However, the above provision does not answer the question of whether a state has a right to cancel a visa that has already been issued to a refugee claimant if it is later determined that the visa itself was issued based on false information provided by the claimant. Relying on a strict reading of Convention Art. 33(1)’s prohibition against refoulement, in Case No. 1607767, the AAT establishes a principle for deciding this issue.

As a signatory to the Convention, Australia is bound under international law to Article 33(1) of the Convention. This article states that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The only exception to this rule is found in Art. 33(2). A refugee is not protected against refoulement if “there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

Nevertheless, Section 109 of the Migration Act of 1958, the domestic law of Australia, gives the Minister of Immigration the authority to cancel a visa if false information was given on the application. Visa cancellations by the Minister are, per the act, reviewable by the AAT, and the AAT regularly approves the cancellations if it concludes that the visa would not have been granted had the applicant initially provided the correct information. For example, in RRT Case No. 1205759 the tribunal upheld a visa cancellation because it determined that the Mongolian applicant lied on her application, claiming to be a lesbian who faced persecution in Mongolia and that she would not have been granted a visa if her true identity as a straight woman not facing persecution had been known. And in AATA Case No. 1412533 the tribunal upheld the visa cancellation, stating that the applicant would not have been granted a visa had she disclosed the fact that Sweden had already recognized her refugee status.

In Case No. 1607767, the applicant, an ethnic Hazara Shia, claimed to be an Afghanistan citizen with no dual citizenship. He entered Australia using a passport from Pakistan which showed him to be a citizen of Pakistan. After entering Australia, he claimed the passport was a forgery and filed for asylum in Australia stating that he feared persecution from the Taliban in Afghanistan, on account of being a Hazara Shia, if he returned to Afghanistan. Australia granted him a Protection Visa on the basis that be faced a well-founded fear of persecution in Afghanistan.

A subsequent identity determination report revealed that the Pakistani passport the applicant used to enter Australia was in fact his valid passport and that he was indeed a citizen of Pakistan. The Minister of Immigration cancelled the applicant’s visa under the authority of the Act. The cancellation was then reviewed by the AAT.

The AAT concluded that the applicant had lied on his visa application, that he was not in compliance with the Act, and that he had not been a credible witness. The AAT stated that these facts weighed heavily in favor of upholding the cancellation of the visa. But it further stated that other factors had to be considered when reviewing the Minister’s action.

The AAT pointed out that the Department of Immigration’s procedural manual requires it to look at “whether the visa would have been granted if the correct information had been given” and “whether the visa cancellation may result in Australia breaching its international obligations.” For the former requirement, the AAT concluded that the visa would not have been granted if the applicant had given the correct information, but, after considering the consequences of sending the applicant back to Pakistan, it ultimately gave more weight to the latter factor.

Drawing from the evidence on record, especially the applicant’s birth certificate and passport, the AAT determined that he was a Hazara Shia resident of Quetta, Pakistan. After examining reports from the United States Department of State and Australia’s Department of Foreign Affairs and Trade regarding the current condition in Pakistan, the AAT acknowledged that there “is ongoing violence against Hazara Shias in Quetta, Pakistan” including “shootings and suicide attacks.” These attacks are carried out by anti-Shia groups in Quetta such as Lashkar-e-Jhangvi and Sipah-e-Sahaba Pakistan. Lashkar-e-Jhangvi leaders declared, in an open letter, that their goal was to “abolish the impure sect” of “Shias and Hazara Shias.” It was then noted in the proceedings that the evidence established that the Pakistani State has been unable to protect the Hazara in Quetta and that the option of relocating within Pakistan was not open the applicant.

The AAT stated that if it approved the cancellation of the visa the applicant “may have to return to Pakistan.” It went on to find that “there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm.” The AAT, “noting that [the applicant] cannot be removed from Australia consistently with Australia’s non-refoulement obligations and that he will not be able to make any valid application for any visa without the Minister personally intervening,” set aside the cancellation of the visa and allowed the applicant to retain protection.

This case is remarkable because the applicant claimed to have been seeking protection from the Taliban in Afghanistan and not from the anti-Shia groups in Pakistan. Yet, the AAT argued that cancelling the visa based on protection against persecution in Afghanistan, would breach Australia’s international nonrefoulement obligations because the applicant may be persecuted in Pakistan.

The AAT’s decision is legally correct under the Convention and Australia’s international obligations. As discussed above, Art. 33(1) prohibits refoulement of a refugee in “any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Under the Convention, refugee status is declaratory, and not discretionary. A refugee is a refugee regardless of official state recognition. Therefore, to fulfill its non-refoulement obligation, Australia must examine whether a refugee claimant is a refugee and whether he or she would face persecution before returning him or her to the country of origin. The only exception to the non-refoulement obligation is when the refugee presents a danger to the refuge state. The Convention does not allow a state to return a refugee to a place of persecution on the grounds that the refugee provided false information or failed to accurately state the place of persecution. Such refugees cannot, under international refugee law, be returned to any place that would persecute them on a Convention ground.

The Convention’s foremost purpose is to provide protection for individuals who are at risk of persecution on account of a protected ground. By prioritizing protection over visa compliance, the AAT acted in accordance with the Convention’s main purpose. In Case No. 1607767, the Court, by examining the actual consequences of cancelling the applicant’s visa, properly honored Australia’s non-refoulement obligations under the Convention. Had the AAT taken a more formalistic approach under Australian immigration law, Australia would have returned the individual to a place where he would be at risk of persecution on account of his religion and ethnicity, in violation of Australia’s non-refoulement obligations. Australia, and other countries, should follow this principle set out in Case No. 1607767 of examining actual consequences based on any information that comes to light about the applicant regardless of what he included in his application to ensure that the central tenants of international refugee law are upheld.

 

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