Melbourne Law School - Theses

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    Law, medical practice and policy development
    Skene, Loane (1947-) ( 2008)
    This application is based on a range of achievements Which establish, as required by Regulation 3.16 of the university's statutes, that 'I have made `a substantial and original contribution to legal scholarship' (see Part A); and that my work `is of such standard as to give [me] authoritative standing in the field of [my] study [Health and Medical Law]' (see Part B). My achievements include scholarly critique and analysis and cross-disciplinary publications in leading international journals (see Part C).
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    The impact of Australia's refugee status determination system on its implementation of its refugee convention obligation on non-refoulement
    Taylor, Savitri P ( 1994)
    Under article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention), Australia has a non-refoulement obligation in respect of `refugees'. This thesis examines whether Australia is violating article 33 of the Refugee Convention by failing to identify the `refugees' amongst its on-shore refugee status claimants. In the absence of a safe third country prepared to receive them, Australia has no choice but to allow persons identified as `refugees' to remain in its territory. The problem is that the Australian Government has goals for the nation it serves and the political party it represents which it believes will be jeopardised to the extent that it is unable to choose which aliens get to reside in Australia and which do not. In consequence, the Australian Government bas a negative attitude towards on-shore refugee status clat. Inimants. This negative attitude has transmitted itself to the officers of the Department of Immigration and Ethnic Affairs (DIEA) who are responsible for making refugee status determinations at the primary stage. DIEA decision makers tend to be overly restrictive in their interpretation and application of key elements of the Refugee Convention definition of `refugee'. On the other hand, the courts and the Refugee Review Tribunal (R.R.T.) - institutions which do not have the political agenda of the Australian Government - have come close to interpreting and applying the Refugee Convention definition of `refugee' in line with international standards. The problem is that not all refugee status claimants can afford to pursue R.R.T. and/or judicial review. This leaves open the possibility that Australia is risking breach of article 33 of the Refugee Convention by repatriating persons who are refugees but have not been identified as such. In order for Australia to avoid breaching article 33, its domestic legal and administrative regime considered as a whole must attain a standard of reasonable efficacy in the implementation of that article. In order for Australia to be assured of attaining a standard of reasonable efficacy, Australia's on-shore refugee status determination process must be designed to meet certain minimum procedural standards. These minimum procedural standards are: the use of an inquisitorial determination system; the maintenance of an independent documentation and research centre; the elimination of factors which could lead to incorrect adverse credibility assessments; the provision to claimants of all information available to the decision-maker; the use of independent, impartial, specialised, full-time, career decision-makers who are carefully selected and adequately trained; adequate access to legal assistance by claimants; the provision of an opportunity to be heard in person and by the decision-maker; the processing of claims without undue delay and adequate rights of review. Australia's refugee status determination system falls short of meeting these minimum procedural standards in some significant respects. It is conceivable that a State's other humanitarian protection measures may sufficiently compensate for an inadequate refugee status determination process by serving as a safety net for Refugee Convention refugees who are not identified by the refugee status determination process. Australia's humanitarian protection mechanisms, however, are not an adequate safety net for such persons.