http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2002/1009.html?query...“60 In any event, while it is literally correct to describe the applicant as an “unlawful” entrant and an “unlawful non-citizen” that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as “uinlawful non-citizens” because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.
61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950′s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.
63 Notwithstanding that the applicant is an “unlawful non-citizen” under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a “right” conferred upon him under Australian law.”
Now those four paragraphs make the law pretty clear and that was upheld by three more judges in the Full Court of the Federal court in April 2003 after Akram had been deported.
So far so good on the “unlawful” = “illegal” story.
So let’s wander off to the High Court appeal which became Behrooz, Al Kateb and Al Khafaji and have a look at the meaning of “unlawful”.
GUMMOW J: What is the baggage of the word “unlawful”?
MR BENNETT: Your Honour, none. It is a word used in a definition provisihttp://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/456.html?query=behroozon, it is simply a defined phrase. It is not a phrase which necessarily involves the commission of a criminal offence.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/458.html?query...“GUMMOW J: What is the force of the word “unlawful”?
MR BENNETT: It is merely a word which is used in a definition section, your Honour.
GLEESON CJ: Does it mean without lawful permission?
MR BENNETT: Yes, that is perhaps the best way of paraphrasing – - –
GUMMOW J: But in the Austinian sense that is meaningless, is it not?
MR BENNETT: Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the – - –
GUMMOW J: Well, perhaps they ought to be.”
Wow, so the word unlawful is legally meaningless.
Who would have thought. But wait it get’s better.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2004/37.html?query=a...continue
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Article 31 UN Refugee Convention - read it!! (Read 3409 times)
