Millbank, ‘The Problem with the 1951 Refugee Convention’, Parliament of Australia, Parliamentary Library, Research Paper 5, 2000–2001.
2.
CrockM., ‘The Refugee Convention at 50: Mid-Life Crisis or Inadequacy?: Some Comments on the Processing of Refugee Claims in Australia,’2001Quebec Journal of International Law4.
3.
Chief Operating Officer of the New Zealand Immigration Service, Mr Lockhart, described the Operational Instructions relating to policy on detention as of 19 September 2001 as recognising the ‘increased risk to national security from trans-border movements following the terrorist events of 11 September 2001’, Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney-General (No 1) [2002] NZAR 717, [76].
4.
Donald, ‘We Don't Know How Lucky We Are, Mate: Australia and New Zealand Refugee Law — A Comparison’, 2002 <www.refugee.org.nz/lucky.html> p.2.
5.
UNHCR, ‘New Zealand: Refugees' first year cost $34m’, UNHCR World News, 30 January 2002, <http://www.unhcr.ch>, p.1.
6.
UNHCR, above, ref 5, p.1.
7.
‘Just Comment: Debunking More Myths About Asylum Seekers’, Joint Publication of Edmund Rice Centre for Justice and Community Education and The School of Education, Australian Catholic University, Special Edition No 2, October 2002.
8.
‘New Zealand and Nauru will take refugees’, Reuters Globe and Mail, 1 September 2001 cited in Crock, above, ref 2, p.8.
9.
UNHCR, ‘Afghan refugees arrive in New Zealand after epic voyage’, UNHCR World News, 26 September 2001 <http://www.unhcr.ch> p.1.
10.
Telephone interview with Marc Tarrant, Associate at Cairns Lane in Auckland, 23 April 2002.
11.
Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney-General (No 1) [2002] NZAR717, [80].
12.
The Transnational Organised Crime Legislation was designed to enable New Zealand to meet its obligations under and ratify the United Nations Convention Against Transnational Organised Crime and its Protocols relating to the people smuggling of migrants and trafficking of persons, Ref NZ News, 25 February 2002 <www.refugee.org.nz/news.htm#>; Ref NZ News, 17 June 2002 <http://www.refugee.org.nz/news.htm#>.
13.
UNHCR, ‘New Zealand passes law to deter people smuggling’, UNHCR World News, 12 June 2002 <www.unhcr.ch>.
14.
‘Fair and expeditious asylum procedures’, UNHCR World News, November 1994, cited in Dunstan, ‘United Kingdom Breaches of Article 31 of the 1951 Refugee Convention’ (1998) 10IJRL205 at 213.
15.
‘Detention of Refugees and Asylum-Seekers’, UNHCR Executive Committee Conclusion No. 44 (XXXVII) — 1986 <www.unhcr.ch>.
16.
‘UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers Guidelines on Detention’, February 1999, Guideline 3, <www.unhcr.ch>.
17.
Donald, above, ref 4, p.2.
18.
Refugee Council notes of meetings with New Zealand Immigration Service officials 5 November 2001, cited in ‘Freedom's Ramparts on the Sea’: The Detention of Asylum-Seekers in New Zealand, Human Rights Foundation of Aotearoa New Zealand and Refugee Council of New Zealand Inc, May 2002, <http://www.humanrights.co.nz/docs/Freedoms_Ramparts.doc>, p.5.
19.
Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney-General (No 1) [2002] NZAR 717 (hereafter Refugee Council and others v AG (No 1).
20.
Refugee Council and others v AG (No 1); Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney-General (No 2) [2002] NZAR 717 (hereafter Refugee Council and others v AG (No 2).
21.
Refugee Council and others v AG (No 2) at [125].
22.
Refugee Council and others v AG (No 2) at [126].
23.
Refugee Council and others v AG (No 2) at [128].
24.
Refugee Council and others v AG (No 1) at [31].
25.
The Minister has appealed this decision.
26.
See (1992) 176 CLR 1 at 10 per Mason CJ, 30–32 per Brennan, Deane and Dawson JJ, and at 45–46 per Toohey J), cited in Kids In Detention Story (KIDS), 2002, Submission to Human Rights and Equal Opportunity Commission's National Inquiry into Children in Immigration Detention, p.73, unpublished <www.julianburnside.com>.
27.
Speech given by Julian Burnside QC at a conference at a refugee law seminar hosted by Law Institute entitled; ‘Seeking Justice for Refugees: Judicial Review, Natural Justice and Unlawful Detention’.
28.
Between October 2001 and April 2002, over 100 people had been detained: 25 in the Auckland Central Remand Prison; 101 at the Mangere Reception Centre, ‘Freedom's Ramparts on the Sea’: The Detention of Asylum-Seekers in New Zealand, Human Rights Foundation of Aotearoa New Zealand and Refugee Council of New Zealand Inc, May 2002, <http://www.humanrights.co.nz/docs/Freedoms_Ramparts.doc> p.6.
29.
Telephone interview with Marc Tarrant, Associate at Cairns Lane, Auckland, 23 April 2002.
30.
Refugee Council and others v AG (No 1) at [78], above, ref 19.
31.
The author, Dana Krause, has provided social support to detainees in the Maribyrnong Detention Centre since 1999 and, since January 2002, has had regular contact with detainees who have been held in the Woomera Detention Centre.
32.
KIDS, above, ref 26, Mental Health Section, pp.1–28.
33.
The Human Rights and Equal Opportunity Commission launched a public inquiry in 2002 into the conditions of detention focusing specifically on the impact of detention on children.
New Zealand acceded to the Refugee Convention on 30 June 1960 and to the Protocol on 6 August 1973. Australia acceded to the Convention in 1954 and to the Protocol in 1973.
36.
See for example Refugee Appeal 71427/99 [2000] NZAR 545; [2000] INLR 608 at [51] cited in Donald, above, ref 4, p.5. In this case the Authority stated: ‘Refugee law ought to concern itself with actions which deny human dignity in any key way and that the core norms of international human rights law are relied on to define forms of serious harm within the scope of persecution’. The Authority further stated that ‘the determination whether the treatment feared in any particular case amounts to persecution will involve normative judgments going beyond mere fact finding’.
37.
See for example RRT Reference V98/09351 (11 July 2001) and N00/33005 (25 May 2001), <www.austlii.edu.au>.
38.
Telephone interview with Nazra Ibrahim a social support worker with Temporary Protection Visa holders, Melbourne, 13 August 2001.
39.
Haines, ‘An Overview of Refugee Law in New Zealand: Background and Current Issues’, paper given at Inaugural Meeting International Association of Refugee Law Judges (IARLJ) Australia/New Zealand Chapter, 10 March 2000, <http://www.refugee.org.nz/IARLJ3-00Haines.html>, [4].
40.
Immigration Act 1987, s.129E to 129M.
41.
The Court of Appeal discusses the jurisdiction to conduct judicial review of RSAA decisions in Butler v Attorney-General [1999] NZAR 205.
42.
Kneebone, ‘The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role?’, (1998) 5Australian Journal of Administrative Law80–1.
43.
Telephone interview with Steven Columbus, former Refugee Status Branch Officer, Melbourne, 3 March 2002.
44.
Telephone interview with Marc Tarrant, Associate at Cairns Lane, Auckland, 23 April 2002
45.
Female asylum-seeker with three young children currently in Maribyrnong Immigration Detention Centre. Unaccompanied minor in Woomera Immigration Detention Centre.
46.
The author, Dana Krause, has been working as a social support worker at the Maribyrnong Immigration Detention Centre since 1999 and is in regular contact with asylum seekers from the Woomera Detention Centre.
47.
Immigration Act 1987, s.129N(1) and Schedule 3C, para 7.
48.
Haines, above, ref 39.
49.
‘Managing Justice: A Review of the Federal Civil Justice System’, Australian Law Reform Commission Report No 89 of January 2000, paras 2.216–2.218.
50.
In Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, it was held that the Tribunal had failed to afford the applicants natural justice because they had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.
51.
In September 1994, Part 8 of the Migration Act 1958 was introduced. It purported to create an exclusive regime for judicial review of administrative action under the Act and limited the available grounds of review by excluding those such as breach of the rules of natural justice and unreasonableness.
52.
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), commenced 2 October 2001. Section 474 is contained in Part 8 of the Act headed ‘Judicial Review’.
53.
Re Minister for Immigration and Multicultural and Indigenous Affairs Ex Parte S134 of 2002 and S157 of 2002 v Commonwealth (3 and 4 September 2002).
54.
Haines, ‘Winning Refugee Cases: Recent Case Law’, Auckland District Law Society Seminar, 26 February 2001, <http://www.refugee.org.nz/ADLS2.htm> (entire speech).
55.
See for example Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
56.
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), entered into force 2 October 2001.
57.
MSI (Migration Series Instruction) 225: ‘Ministerial Guidelines For The Identification Of Unique Or Exceptional Cases Where It May Be In The Public Interest To Substitute A More Favourable Decision Under ss.345, 351, 391, 417, 454 of the Migration Act 1958’ Instructions in this Migration Series (MSIs) relate to: the Migration Act 1958; the Migration Regulations and other related legislation (as amended from time to time).
58.
Legal Services Act 1991, s.19(1)(ja) as amended by Immigration Amendment Act 1999, s.64(1).
59.
Legal Services Act 1991, s.19(1)(jb) as amended by Immigration Amendment Act 1999, s.64(1).
