EXCLUDING REFUGEES ON NATIONAL SECURITY GROUNDS: PROBLEMS AND PROSPECTS

Likim Ng

In 2016, the UN Human Rights Committee condemned the indefinite detention by Australia of five asylum seekers who were incarcerated without charge for unknown security reasons. Between September 2009 and September 2010, these asylum seekers entered Australian territorial waters by boat. They landed on Christmas Island without valid visas to enter Australia and were placed in immigration detention facilities.

The Department of Immigration recognised these asylum seekers as refugees whom it was unsafe to return to their countries of origin. However, the five refugees were refused visas to remain in Australia (the granting of a protection visa being a separate process), following adverse security assessments made by the Australian Security Intelligence Organisation (ASIO). These refugees were not given any reasons for the adverse security assessments made against them, nor were they able to appeal the merits of their security assessments.

This treatment spreads to other recognised refugees who have been detained after receiving adverse security assessments. Between January 2010 and November 2011, ASIO issued an adverse security assessment to 54 refugees. None were excluded pursuant to Article 1F or any of the other security provisions of the Refugee Convention. The refugees continued to be held in detention pending their removal from Australia in the absence of a valid visa. In January 2015, a group of ten refugees who had previously received negative security assessments were told that these decisions had been reversed. Most of them were released from detention centres and allowed to live in the Australian community. Eight years later, two Sri Lankan refugees are still detained despite their ASIO assessments being revised. This paints a picture of the problem with using national security grounds in the exclusion of refugees.

The purpose of Article 1F

Article 1F, otherwise known as the exclusion clause, is part of Article 1 of the Refugee Convention, which defines the term “refugee.” Article 1F excludes a person from refugee status where there are serious reasons for considering that he or she has committed an international crime, a serious non-political crime or an act contrary to the purposes and principles of the United Nations. The original purpose of Article 1F was to determine that some people, as a result of these very serious actions, were undeserving of international protection.

I argue that instead of determining who is deserving of protection, Article 1F has taken on the burden of a national security provision from other articles of the Refugee Convention, which normally deal with national security issues. Article 33(2) provides for the return of refugees to a country of persecution where there are reasonable grounds for regarding them as a danger to the security of the host country or having been convicted by a final judgment of a particularly serious crime. However, this article is to be used where there are reasonable grounds that the person will commit crimes in the future. While Article 1F deals with past conduct.

Moreover, Article 32 concerns the expulsion of refugees save for the grounds of national security or public order. However, due to its strict interpretation, expulsion can only be used as a last resort as the only practical means of protecting the legitimate interests of the state.

Article 9 gives contracting states the measures of control to contain the threat of national security. The definition of national security under Article 9 is narrow and to be triggered requires a very high-ranking public interest, including political independence, territorial integrity and the functioning of government or other vital public institutions.

These articles are different from determining whether one is deserving of protection. Concerning is that Article 1F is being used as a national security provision despite other articles being more appropriate.

Article 1F as a security provision

Before ASIO started to determine Article 1F cases, the language of security and emergency was already becoming a standard way of operating in exclusion clause decisions. Judges and tribunal members had been expanding the intention of Article 1F to exclude refugees for security reasons. In decisions, Article 1F asylum seekers were being described as threats to the order, safety and even morality of society.

From the outset, we might think that it is perfectly reasonable to exclude refugees on the basis of national security. However, security concerns are a lot more subjective in nature than determining whether there are ‘serious reasons to consider that the asylum seeker’ has committed an international crime. In that sense, the decision maker can input his or her own political leaning into interpreting the law. Once asylum seekers have been described as “security threats”, subpar fair trial standards can be justified.

Asylum seekers deemed as “security threats” are treated as if unworthy of a court system to determine their cases. Unlike in a court system that guarantees the right to be represented, the security body has been denying asylum seekers access to legal representation. The Inspector General of Intelligence and Security found that ASIO were not offering all refugees the right to a lawyer in their interview. Asylum seeker service group, the Refugee Advice and Casework Service said the majority of its lawyers had been denied entry to the interviewing process. The inquiry determined that the ASIO officers should not have excluded the lawyers from interviews.

There have also been problems with the way ASIO has been politically influenced. This is less likely to happen with a court determining cases with the doctrine of separation of powers. This year, ABC News leaked a sensitive cabinet document from 2013, in which the former immigration minister, Scott Morrison, agreed that the Department of Immigration and Border Protection should intervene in ASIO security processing. The former immigration minister requested that ASIO delay security checks for 700 asylum seekers who were eligible for permanent protection so they would miss the application deadline.

Conclusion

Australia has been adding its own national security test instead of excluding asylum from refugee status under Article 1F or returning them under Article 33(2). Australia has been relying on the Australian Security and Intelligence Organisation Act 1979 to carry out adverse security assessments to exclude asylum seekers who have committed international crimes from protection.

What we saw from the 2016 UN Human Rights Committee report is a security agency issuing adverse security assessments to recognised refugees. History has shown many times that power without oversight often becomes abusive so that an exception becomes the norm. We see protracted detention without charge, a lack of reasons for decisions and the denial of legal representation affecting more and more people.

National security issues should be decided narrowly since there is a large amount of discretion on the part of the decision maker. Moving forward, in the case of Article 1F cases, the decision maker should decide according to the wording of the law rather than adding security concerns which is the prerogative of other articles. That is, to determine whether there are serious reasons for considering that he or she has committed an international crime, a serious non-political crime or an act contrary to the purposes and principles of the United Nations. Decisions based on national security reasons should also reflect our legal system, which provides for reasons for the decision, a fair sentence and access to legal representation.

Likim Ng is a PhD candidate at the ANU College of Law, Australian National University, where she has taught in the areas of legal theory, critical legal theory and human rights law. Here is a recent journal article.