Australian Year Book of International Law
Ben Olbourne[∗] and Donald R Rothwell[∗∗]
Minogue v Williams
 FCA 125
Federal Court of Australia
Ryan, Merkel and Goldberg JJ
This was an appeal from a 1999 decision of a single judge of the Federal Court dealing with the issue of whether there existed a ‘justiciable’ matter under the terms of the 1966 International Covenant on Civil and Political Rights [ICCPR]. On appeal the Court gave particular attention to the status of the ICCPR in Australian law.
The Court did not accept a submission that the attachment of the ICCPR as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) made it a part of that Act, noting that ‘there is nothing in that Act which purports to incorporate the ICCPR as part of Australian domestic law or enact it as such’. While the ICCPR is referred to in the Act, it is not referred to in the context ‘of creating or conferring statutory rights in accordance with its terms’ but rather for the purpose of identifying functions of the Human Rights and Equal Opportunity Commission (HREOC).
Particular attention was given by the Court to the conflicting position of the judge at first instance with that of Millhouse J in the South Australian Supreme Court decision of Collins v South Australia as to the status of the ICCPR in Australian law. It was noted:
Whilst it is well recognised that international standards reflected in treaties have been drawn upon to influence the development of the common law … the observation of Millhouse J that incorporation of the terms of a treaty into domestic law results merely by it being a schedule to an Act cannot be accepted. The observations are inconsistent with, and fail to take into account, the observations in Dietrich v The Queen.
The appeal on this ground was accordingly dismissed.
Commonwealth v Human Rights & Equal Opportunity Commission
 FCA 1854
Federal Court of Australia
This matter concerned an application for review by the Commonwealth against the HREOC following a Commission finding of discrimination against the Commonwealth under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Attached to the Act is the 1958 Discrimination (Employment and Occupation) Convention, adopted by the International Labour Organisation (ILO) and in force for Australia from 1974. Article 1 of the Convention contains a definition of ‘discrimination’, which in turn is the source for the definition of discrimination in the Act.
Much of the argument before the Court concerned the proper construction of ‘discrimination’ under the Convention and to that end Katz J particularly noted the views of the Governing Body of the ILO known as ‘The Committee of Experts on the Application of Conventions and Recommendations’ (Committee of Experts). It was noted that HREOC regularly sought to construe the Convention, and thereby the Act, on the basis of the expression of opinions by the Committee of Experts and this was not contested by the Commonwealth. In particular, Katz J noted:
The opinions of ‘experts of recognized competence’ or of ‘prominent judges, professors, and labour law experts’… as to the meaning of the Convention at the time of its adoption are capable, whenever expressed, of assisting in its proper construction … The use of those opinions as an aid to the construction of the Convention is an unexceptional illustration of the use of ‘la doctrine’, a process in the construction of international agreements.
Justice Katz also noted the work of an ILO Commission of Inquiry appointed under the ILO Constitution and its findings and recommendations in this area. Further support for reliance being placed upon the views of the Committee of Experts could be found in the South West Africa Cases where Jessup J noted the ‘judicial nature’ of an ILO Commission of Inquiry. Katz J was of the view that the use of such reports would be an ‘unexceptional illustration of the use of “la jurisprudence”’ as part of the ‘process in the construction of international agreements’.
As to the manner in which international instruments are drafted, Katz J noted the comments of the House of Lords in James Buchanan v Babco Forwarding & Shipping and concluded:
Influenced under the circumstances by the opinions of the Committee of Experts and the report of the Commission of Inquiry … I treat the relevant words of the Convention as being of that loosely worded type described by both Viscount Dilhorne and Lord Wilberforce. That is an outcome which promotes uniformity and consistency in the construction of the Convention and avoids a multitude of divergent approaches to the Convention by the parties to it…
The Commonwealth’s application for review of the HREOC decision was ultimately dismissed.
Sumner v United Kingdom
 SASC 91
Supreme Court of South Australia
This matter concerned, amongst other things, an application for a declaration that acts of genocide had been committed against the plaintiffs by the United Kingdom, the state of South Australia, and Alexandrina Council (a local authority in South Australia). The application, made on behalf of the Ngarrindjeri people, was made against the backdrop of the controversy regarding the building of the Hindmarsh Island bridge in South Australia, a matter that had been before the courts in other contexts.
Justice Nyland reviewed the state of the law concerning genocide in Australia, making particular reference to the recent decision in Nulyarimma v Thompson. Noting the importance of there being an intention to destroy members of a group in order to constitute the offence of genocide, the judge rejected the proposition that the failure to recognise the legal sovereignty of a group of peoples amounts to an intention to destroy that group. It was also noted that the acquisition of sovereignty over Australia by Great Britain was a non-justiciable matter. It was accepted that the building of the Hindmarsh Island bridge was not to be equated with an intention to destroy the Ngarrindjeri people.
As to the question of the status of genocide in Australian law, previous authority was referred to regarding the impact of a treaty in Australian law. As the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide had not been given effect to by legislation, the Convention had not been incorporated into Australian law. Some reference was made to the so-called ‘lacuna theory’, relied on by the plaintiffs in argument, to the effect that international law could be looked to in order to fill a gap or lacuna in the common law. However, there was no authority that a treaty could be relied upon in this fashion and in any event, Nyland J noted that ‘it is clear that these cases and others … view customary international law as a potential source of Australian common law but not an automatic part of it’. Following the decision in Nulyarimma v Thompson, it was concluded that ‘in the absence of legislation, a prohibition against genocide is not cognisable under Australian law’.
The plaintiffs sought orders that the United Kingdom commence proceedings against Australia in the International Court of Justice (ICJ) for breaches of the Genocide Convention and the 1969 Vienna Convention on the Law of Treaties, and that the Commonwealth of Australia seek from the ICJ an Advisory Opinion regarding the jurisdiction of the Commonwealth and state of South Australia over the Ngarrindjeri. This relief was also refused.
McBain v Victoria
 FCA 1009; (2000) 177 ALR 320
Federal Court of Australia
This matter concerned an application for a declaration that the provisions of the Infertility Treatment Act 1995 (Vic) were inconsistent with the Sex Discrimination Act 1984 (Cth) and accordingly inoperative as per s 109 of the Commonwealth Constitution. It was submitted in argument that under the terms of the Infertility Treatment Act artificial insemination or in vitro fertilisation (IVF) can only be performed on a woman who is married or living with a man in a de facto relationship. Lesbians, single women and women who are separated from their husbands are excluded from treatment. This, it was argued, was inconsistent with the provisions of the Sex Discrimination Act, s 22 of which made it unlawful to discriminate on the grounds of marital status.
In the course of the proceedings, the Catholic Church as amicus curiae, argued that various international instruments recognise the right of a child to be born into a family, to be raised by a mother and father and to know its parents. It was contended that the Sex Discrimination Act should be read consistently with the rights of the child identified in the above instruments.
In addressing this specific point, Sundberg J noted that the Sex Discrimination Act was designed to give effect to the provisions of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women. If the arguments presented to the Court were to be accepted, ‘[t]he Catholic Church’s argument would give primacy to implications from other treaties over the words of the very treaty to which the Commonwealth Act gives effect’. It was further noted that the words of s 22 of the Sex Discrimination Act were clear and unqualified:
They are eminently apt to pick up a service rendered by a medical practitioner, and there is no occasion to introduce into them a qualification derived from an assumption made in treaties dealing with other topics, namely that a child will be born into a family as a result of natural processes involving a married couple. The fact that those treaties proceed on that assumption does not mean they are to be taken to assert or imply a prohibition against the birth of a child as a result of some other, medically assisted, mechanism.
It was also noted that the rights contained within the various international instruments, were not unqualified and accordingly could not be read in isolation without reference to the other provisions in those instruments.
The provisions of the Sex Discrimination Act (Cth) were accordingly not read down. The Infertility Treatment Act 1995 (Vic) was found to conflict with the Commonwealth Act and thus was inoperative to the extent of any inconsistency.
Minister for Immigration and Multicultural Affairs v Haji Ibrahim
 HCA 55; (2000) 175 ALR 585; 74 ALJR 1556
High Court of Australia
Although the 1951 Convention Relating to the Status of Refugees (‘Refugees Convention’) is an international instrument, its interpretation and application generally fall to national administrators and adjudicators. Consequently, it may happen that important differences arise in the scope and meaning given to provisions of the Convention in different countries. The decision of the High Court in Haji Ibrahim is a good example of this.
The claims of persons claiming refugee status in Australia are assessed against the definition of a refugee contained in Article 1A(2) of the Refugees Convention (‘the Convention definition’). That provision defines as a refugee any person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.
In Haji Ibrahim, the High Court considered the application of this definition in relation to a claimant fleeing a country in a state of what was variously described as ‘civil war’, ‘civil unrest’, or ‘clan conflict’, in this case Somalia after the overthrow of Siad Barre in 1991. The claimant, a Somali national, had established that he had a well-founded fear of serious harm and that both the clan and the sub-clan to which he belonged constituted particular social groups for the purposes of the Convention. However, the Refugee Review Tribunal (‘RRT’) rejected his claim on the basis that there was nothing ‘which could be regarded as part of a course of systematic conduct aimed at members of either group … for reasons of their membership of the group’. It also held that the evidence revealed ‘a picture of the ordinary risks of clan warfare, largely involving struggles for power and resources’ in which the claimant was ‘not differentially at risk for a Convention reason’.
A second but related issue that arose during the course of the litigation was the need to determine the ‘motivation’ behind the clan conflict. The RRT had concluded that the applicant had not been persecuted for reasons of his clan membership as he would have suffered the same harm at the hands of rival clans regardless of the particular clan to which he belonged. The Full Court of the Federal Court held that this approach was erroneous as it failed to address whether the conduct was motivated by an intention to repress his clan. The Full Court had developed this point in its decision in the case of Minister for Immigration and Multicultural Affairs v Abdi, where it had said:
it is essential for a decision-maker … to determine whether the war is directed to objectives such as securing power, property and access to resources, or whether in reality it is directed against persons or groups because of … group membership. Unless attention is focused on the reasons for the war, it is difficult to determine whether the antagonism is based on Convention grounds.
The terms of the RRT’s decision and the discussion of ‘motivation’ were prompted by the decision of the House of Lords in Adan v Secretary of State for the Home Department, a decision made in respect of largely similar facts. There, the House of Lords posed for itself the question:
Can a state of civil war whose incidents are widespread clan and sub-clan based killing and torture give rise to well-founded fear of persecution for the purposes of the [Convention] … not withstanding that the individual claimant is at no greater risk of adverse treatment than others who are at risk in the civil war for reason of their clan and sub-clan membership?
Lord Slynn of Hadley answered that question by holding that a claimant fleeing from Somalia had to show ‘a well-founded fear of persecution over and above the risk to life and liberty inherent in the civil war’, and Lord Lloyd of Berwick held that the claimant must be able to show ‘a differential impact’ or ‘fear of persecution for convention reasons over and above the ordinary risks of clan warfare’.
Much of the decision of the High Court and of the lower courts depended on the particular way in which the claimant’s case was presented and on the differing views of judges at all instances as to what the RRT had meant and whether any alleged errors were such as to vitiate its decision. However, the High Court’s decision is important for its consideration of the application of the Convention definition to persons fleeing states in civil conflict and its strong criticism and rejection of the approach adopted in Adan. It is also important for its consideration of the requirement of ‘systematic conduct’ and ‘the relevance of “state responsibility”.’
By majority, the High Court held that the RRT had not made any relevant error of law. The leading judgment was given by Gummow J. The starting point in his Honour’s reasons was that the state of affairs in Somalia could not readily be described as a ‘civil war’, since that term had a particular meaning ‘derived from the issues in and significance of such struggles for the control of the government of a nation state or a federated state as those in England between 1642 and 1649, in the United States between 1861 and 1865, and in Spain between 1936 and 1939’. In such conflicts there were generally clearly defined sides and objectives. However, such conflicts were far removed from the ‘widespread disorder’, ‘instability, anarchy and murderous shiftings’ and absence of any central authority characteristic of the situation in Somalia. Therefore, to focus on the concept of civil war and to give it an important part to play in the application of the Convention definition, as the House of Lords had done in Adan, was to proceed upon an hypothesis flawed in several respects and involved the risk ‘that there will be a blurring of the distinction between the persecutory acts which the [claimant] must show and the broader circumstances leading to those acts’.
The requirement to determine the motivation behind a conflict would also impose an invidious and unwarranted burden on the trier of fact. As Gummow J observed:
The objectives of the various states which were combatants in the First World War were the subject of propaganda at the time and remain a subject for debate between historians with varying degrees of access to primary sources. To oblige the [trier of fact] to embark upon such issues during or shortly after the immediate currency of the events in question, presumably to reach conclusions of fact upon them, is a task not readily to be inferred by reason of … the Convention definition. The dynamics of communal violence, civil conflict and disorder may obscure the boundaries between combat, crime and persecution. The reasons for a particular conflict may be virtually unfathomable.
Gummow J concluded that a decision-maker’s task is to determine whether the particular experiences of a claimant (or his or her social group) fall within the terms of the Convention definition, and that it is of no utility to ask whether a claimant is to be differentiated from other members of the general population who are all at risk from the conflict, or to determine the objectives and motivation of the different groups involved in the conflict. Consequently, the notions of ‘civil war’, ‘differential impact’ and ‘motivation’ are ‘distractions from applying the text of the Convention definition’, and in so far as Adan, Abdi and other decisions expound or apply them, they should not be followed. On the merits of the appeal, Gummow J held that although the RRT had referred to these notions, it had not been misled by them and had properly considered the circumstances of the applicant.
In order to arrive at his conclusions, Gummow J undertook an examination of the historical basis of the Refugees Convention and of its place within the wider context of humanitarian and human rights law and other measures of international and national origin. He concluded that the Convention definition, being ‘based on individual persecution’, ‘does not encompass those fleeing generalised violence or internal turmoil’ or ‘mass movements of persons fleeing civil war or other armed conflicts’. Any ‘judicially perceived mischief in the delayed development’ of the international protection provided to such people, he cautioned, was not to be rectified by judicial extension of the intended scope and application of the Convention definition of a refugee.
McHugh J agreed with the majority’s rejection of Adan and of the use of notions such as ‘differential impact’ and ‘risk of harm over and above that of others’. It is true, he noted, that ‘as a practical matter’ it may be difficult to determine in a context such as Somalia whether the feared persecution is for Convention reasons or for military or economic reasons, but that is very different from a rule that a claimant must prove that he or she is exposed to a greater risk of harm than others. His Honour also agreed with the majority that the Full Court had erred in requiring the RRT to investigate the ‘motivation’ of the conflict rather than of the persecutory conduct against the claimant. McHugh J’s departure from the majority was based on his belief that the RRT had been improperly influenced by Adan and the notions of differential impact and ordinary risks. Kirby J’s dissent also appears to be based on a different interpretation of the reasons of the RRT and the Full Court.
Gaudron J’s approach was significantly different and was based squarely on the notion of discrimination inherent in the concept of persecution. Her Honour was of the opinion that it was difficult to escape the conclusion that, in a clan war, the actions of one clan against members of another clan are always actions taken for reasons of membership of a particular social group. However, she held that such conduct will constitute persecution for the purposes of the Convention only if it discriminates in some way against members of that other clan. Since discrimination includes ‘conduct which does not properly take account of relevant differences’, it follows, that if a claimant could establish that conduct to which all were subject might have greater consequences for his or her own particular social group, then he or she would satisfy the requirements of the Convention definition. In other words, it was not sufficient to ask, as the House of Lords held in Adan, only whether the claimant or the claimant’s particular social group faced risks ‘over and above the ordinary risks of clan warfare’; one also had to inquire whether ‘the ordinary risks of clan warfare’ might be greater for members of one particular social group than for others. This inquiry would require the trier of fact to consider whether clan warfare posed any special problems for members of the claimant’s clan or sub-clan over and above those of all the clans caught up in the conflict, and to make findings, for example, as to the relative military strength of those groups or their ability to forge alliances or otherwise seek protection.
The RRT observed in its reasons that there had not been ‘a course of systematic conduct’ against the claimant for reasons of his clan membership. The claimant alleged that reliance on this finding constituted an erroneous application of the Convention definition in that it required proof of a series of incidents or habitual or methodical conduct on the part of the persecutor. The High Court rejected the claimant’s interpretation of the RRT’s decision, but nevertheless took the opportunity to clarify earlier jurisprudence and to affirm that the Convention definition could be satisfied by proof of a single act or isolated acts provided that the claimant nevertheless had a well-founded fear of persecution for a Convention reason. McHugh J, whose earlier judgment had done much to popularise the term ‘systematic conduct’, explained that he had used the term merely as a synonym for ‘non-random’ or ‘selective’ but advised that, given the possibility of error, it should no longer be used.
A final point considered by the High Court was the relevance of ‘state responsibility’ in the interpretation and application of the Convention definition. That definition provides that a refugee must be ‘unable or … unwilling to avail himself of the protection of [the] country’ of his or her nationality. It is generally accepted that persecution carried out by the state or in which the state is complicit will come within the definition. What is not certain, however, is whether the definition extends to persecution merely tolerated by the state or persecution occurring within a country where there is no effective state authority, such as Somalia.
Although the proceedings did not call for a decision on this point, Gummow J indicated his disagreement with the proposition ‘that the “protection of [the] country” … excludes the notion of protection by its government’. McHugh J took the opposing view. He observed:
Where the state has disintegrated, as appears to have been the case in Somalia, so that there is no state to prevent the persecution of a person by private individuals or groups, that persecution will fall within the definition of refugee just as it would if an existing government had failed to protect that person from the persecution. … A person who otherwise satisfies the definition is a refugee when that person cannot avail him or herself ‘of the protection of [his or her] country’, not its government.
Chen Shi Hai v Minister for Immigration and Multicultural Affairs
 HCA 19; (2000) 201 CLR 293
High Court of Australia
On a number of occasions the High Court has upheld decisions refusing to recognise as refugees persons claiming protection from persecution by reason of their contravention of China’s one-child policy. In this case, by contrast, the High Court had to consider the claims of a child born in contravention of that policy. The claimant, although born in Australia while his parents were awaiting compulsory repatriation after their applications for refugee protection had been rejected, was a Chinese national. He was his parents’ third child. Although the RRT rejected the claimant’s application, it made a number of important findings in his favour. It found that he had a well-founded fear of harm in China as a member of a particular social group known as ‘black children’. That group was comprised of children born outside the parameters of China’s one-child policy and/or born of unmarried parents. The RRT also found that the harm feared by the claimant — the denial of access to food, education and health care beyond a very basic level, and social discrimination, prejudice and ostracism — amounted to persecution. On appeal, the question of persecution was not reopened, but, ultimately, the Full Court of the Federal Court held that ‘black children’ did not constitute a particular social group.
The ground on which the RRT rejected the claimant’s application was that the persecution feared was not ‘for reasons of’ membership of the group of ‘black children’. Rather, it arose from the Chinese authorities’ intention ‘to penalise those who have children outside the approved guidelines’ and because of the claimant’s parents’ inability to afford the alternatives to state-subsidised education and health care. The intermediate appellate courts came to conflicting conclusions as to the correctness of this reasoning.
Two questions were therefore presented on appeal to the High Court. The first was whether the claimant was a member of a particular social group. The Court reiterated that it is impermissible to identify a particular social group solely by virtue of the persecutory conduct in question. Thus, persons who feared enforced sterilisation due to their opposition to China’s one-child policy did not constitute a particular social group. However, the claimant’s circumstances were very different. His particular social group was defined ‘other than by reference to the discriminatory treatment or persecution that [its members] fear’, and a child was a ‘black child’ ‘irrespective of what persecution may or may not befall him or her’. Or, in the words of another test previously relied on by the High Court, ‘black children’ were being persecuted for what they were, not for what they did. Given the findings of the RRT, the High Court concluded that there was no reason to displace the determination that ‘black children’ constituted a particular social group for the purposes of the Convention.
The second question for the High Court was whether the persecution faced by the claimant would be ‘for reasons of’ his membership of that social group. The Court rejected the notion that to succeed a claimant must identify enmity, malignity or other adverse intention on the part of the persecutor towards himself or herself. Rather, it held that it is sufficient that ‘the apprehended persecution … be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted’. Proof of enmity or malignity, the Court said, might facilitate the identification of the causal relationship between the persecution and membership of the particular social group, but it was not a necessary element of it. It was therefore a simple matter to conclude, in respect of the present claimant’s application:
Once it is accepted that ‘black children’ are a social group for the purposes of the Convention, that they are treated differently from other children, and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that that treatment is for a reason other than his being a ‘black child’.
The Court rejected the proposition that the persecution faced was not due to the claimant being a ‘black child’ but was due to the impoverished state of his parents. This merely established that neither the claimant nor his parents had the means to mitigate the consequences of the persecution. It was also incorrect to say that the claimant was at risk of persecution not because of his membership of the ‘black children’ social group but because of his parents’ contravention of China’s one-child policy, because to say that his parents contravened the one-child policy was ‘simply another way of saying that he is a “black child”’.
Although not necessary for its decision, the Court also observed that different analyses might be called for depending on the particular reason or reasons alleged for the persecutory conduct. Differential treatment of persons of a particular race, religion or nationality, the Court explained, may in itself justify the conclusion that they are being treated discriminatorily by reason of their race, religion or nationality, because, ordinarily, those characteristics do not provide a reason for treating people differently. This was not necessarily the same in respect of the other Convention reasons, namely membership of a particular social group or political opinion. In relation to these grounds, it also had to be determined whether or not the differential treatment was ‘appropriate and adapted to achieving some legitimate object’. However, treatment that so ‘offends the standards of civil societies which seek to meet the calls of common humanity’ — such as the denial of access to food, shelter, medical treatment, and education faced by the claimant — would ordinarily constitute persecution whether or not there was a legitimate purpose.
Minister for Immigration and Multicultural Affairs v Khawar
 FCA 1130; (2001) 178 ALR 120
Federal Court of Australia
Hill, Mathews and Lindgren JJ
Often the harm feared by a person claiming refugee status will be found to have been motivated by private, non-Convention reasons. A claimant may then try to establish in the alternative that the failure or absence of state protection against that harm constitutes persecution and is motivated by Convention reasons. Such was the case here in respect of a Pakistani woman who had been the target of severe physical violence at the hands of an abusive and alcoholic husband. It was held that the violence she feared from her husband was for reasons peculiar to her family situation and not for Convention reasons. She then alleged that the failure of the police to intervene when she reported the abuse amounted to persecution and that this failure was for reasons of her membership of the particular social group of ‘women in Pakistan’ or ‘married women in Pakistan’. The RRT had rejected this alternative claim on the basis that it was rendered irrelevant by the finding that the violence was inflicted for private reasons. This approach was rejected by the Full Court of the Federal Court which stressed the need for an independent consideration of the merits of the alternative claim.
The Full Court applied the decision of the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs, and held that the withholding of police protection that was available to other members of society from members of a particular social group could amount to persecutory conduct. Although stating a preference for the view that the persecutory conduct consisted solely of the failure of the state to provide adequate police protection, the Court did not feel it was necessary in this case to reject what it described as the English approach, namely that there must be a combination of privately motivated violence and a lack of state protection. The difference between the two approaches, it was said, was that the second requires that there be some ‘positive action by anyone, even a non-state agent, discriminating against [the claimant]’.
Even on the first of the two views, however, mere absence of protection would not be sufficient, as it may be due to systemic inefficiency or the ineptitude or attitude of particular police officers. A claimant is required to establish ‘something more’, a requirement that would be satisfied ‘at least’ by proof of ‘a sustained or systemic absence of state protection’. Then, provided that the claimant could establish that the motivation for the persecutory conduct was merely something perceived about his or her particular social group, and not necessarily any enmity or malignity, then he or she would have satisfied the requirements of the Convention definition. Evidence had been placed before the RRT that there was widespread state-sanctioned discrimination against women in Pakistan and that the police as a result routinely failed to take seriously and respond to claims of abuse made by women. The failure of the RRT to consider this material and to reach a decision on it necessitated setting aside its decision and the remittal of the matter for further consideration.
Minister for Immigration and Multicultural Affairs v Mohammed
 FCA 576; (2000) 173 ALR 23
Federal Court of Australia
Spender, French and Carr JJ
The Refugees Convention definition of a refugee extends to cover claims for refugee status made by persons in relation to events occurring while they are outside their country of nationality. Such claimants are generally referred to as ‘refugees sur place’. Their claims may be based either on changed circumstances within their country of nationality or on their own conduct while abroad, and often are alleged to be for reason of their political opinions or the political opinions attributed or imputed to them by the authorities of their country of nationality. The question that arose for the consideration of the Full Court of the Federal Court in Mohammed was whether a decision-maker, in assessing a claim for refugee status, is obliged to ignore conduct engaged in abroad that was designed solely so as to give the claimant a well-founded fear of persecution for reasons of political opinion. Put another way, the Court had to consider whether a requirement of ‘good faith’ on the part of a claimant should be seen as an essential element of the Convention definition.
The Court, by majority, held that a claimant’s want of good faith is merely ‘a factual issue with evidentiary significance’ and not ‘a rule of law to be laid over the words of the Convention’. Whether or not the circumstances were engineered by the claimant, and whether or not they were engineered in bad faith, the task of the decision-maker remains that of applying the words of the Convention definition and determining whether the claimant nevertheless has a well-founded fear of persecution.
In respect of a claim of persecution on the basis of a political opinion held by the claimant, evidence of deliberate conduct designed to bring about a risk of persecution will raise ‘a considerable hurdle of personal credibility’ and will be ‘a powerful indicator’ that the claimant does not genuinely fear persecution or that the fear is not objectively well-founded. In respect of a claim of persecution for reasons of imputed political opinion, it remains necessary for a claimant to establish a sufficient causal connection between the apprehended persecution and the imputed opinion. It may well be that the cause of the fear of persecution is the deliberate conduct of the claimant calculated to achieve that end, rather than the opinions attributed to him or her by the country of nationality. As French J observed:
A persecutory reaction, by the country of origin, to the applicant’s pretext because of the embarrassment it creates or domestic difficulties it generates in that country will not thereby be on account of an attributed political opinion, but rather the action itself which will not therefore attract Convention protection. 
Omar v Minister for Immigration and Multicultural Affairs
 FCA 1430; (2001) 179 ALR 525
Federal Court of Australia
Black CJ, Ryan and Moore JJ
The decision in Mohammed was subsequently approved in the unanimous decision of the Full Court of the Federal Court in Omar, and applied in the context of a claim of a well-founded fear of persecution based on the possible future conduct of the claimant in his or her country of nationality. In contrast to Mahommed, the conduct in question in Omar had not yet occurred and, indeed, if the claimant was afforded refugee status, would not occur at all. However, the Full Court emphasised that the task of the decision-maker remains that of applying the Convention definition and determining whether the claimant has a well-founded fear of persecution for a relevant reason.
The claimant was a Somali student who had studied abroad for many years. During those years, he had written poetry and prose critical of the Somali clan system. He claimed that these writings manifested a political opinion for which he would be persecuted if returned to Somalia. The RRT rejected this claim on the basis that, as he had failed to establish that his writing and political opinions had attracted any attention in Somalia, his fear was not well-founded. The claimant further submitted that, if returned, he would continue to write poetry and prose critical of the clan system and would face persecution on this account. The RRT did not consider this claim on the merits, having rejected the proposition that possible future acts by the claimant could form the basis of a well-founded fear of persecution. An appeal to a single judge of the Federal Court was dismissed on the basis that there must be existing facts and circumstances in order to ground a presently held well-founded fear of persecution.
The Full Court held that both the RRT and the single judge had erred in the interpretation and application of the Convention definition, and remitted the matter for further consideration. The Full Court held that possible future conduct, including what the claimant had termed a ‘spontaneous voluntary expression of political opinion’, could satisfy the requirements of the Convention definition of a refugee. The Court observed that claims made on the basis of future conduct require both the assessment of the subjective beliefs of the claimant and predictions about the future behaviour of the claimant and the reaction to that behaviour of the authorities in the claimant’s country of nationality. Such claims would, therefore, require ‘very close scrutiny’ and ‘may well be treated with scepticism’ in many cases. However, the decision-maker is required to make that assessment. That assessment would not be a matter of ‘mere speculation’. Much would depend on the facts of each case and on the evidence of the strength and history of the claimant’s convictions. In this respect, the past conduct of the claimant and of the authorities in the country of nationality would be of important, although not conclusive, evidentiary value.
The notion of ‘reasonableness’ would also be relevant, but only as a means of assessing the likelihood of the future conduct of the claimant. It would be wrong, the Court said, for the decision-maker to proceed upon an assumption in all cases that a claimant should act ‘reasonably’ and compromise his or her beliefs so as to avoid persecution or take ‘reasonable steps’ for his or her own protection. To do so in all cases might have the result that some claimants would be returned in circumstances where they faced persecution.
Minister for Immigration & Multicultural Affairs v Zheng
Federal Court of Australia
 FCA 50
Hill, Whitlam and Carr JJ
Wang v Minister for Immigration and Multicultural Affairs
Federal Court of Australia
 FCA 1599; (2001) 179 ALR 1
Wilcox, Gray and Merkel JJ
In both of these proceedings, claims were made of persecution by reason of the practice of religion at an ‘unofficial’ church in China. The evidence established that the Chinese authorities recognised a limited number of official religions which they required to be registered, and that the authorities took steps, potentially amounting to persecution, to prevent the practice of religion in unauthorised churches.
In Zheng, the claimant was a member of the underground Catholic Church. He established that he would continue to be a practising Catholic if returned to China, but he failed to establish as well-founded his fear of specific acts aimed at him by reason of his worship in an unofficial church. However, he made a second submission that the failure to be permitted to practise one’s religion was itself persecution on grounds of religion. The Full Court of the Federal Court held that a ‘prohibition legally to practise one’s religion could, and probably would, constitute persecution on religious grounds for the purposes of the Convention’. However, it accepted the RRT’s conclusion that, on the evidence, the claimant had not been prohibited from practising his religion. The basis for this conclusion was that the underlying religious faith and doctrine in authorised and underground churches were the same, and that the only difference lay in the need for registration and in the governance of the church. The Full Court was of the view that the approach of the RRT did not disclose any reviewable error.
A very different conclusion was reached in the case of Wang. Here, the claimant claimed to have a well-founded fear of persecution by reason of the practice of his religion as a Protestant Christian in an unregistered church. The RRT had rejected this on the basis that as the claimant could have practised within the registered Protestant Church, any persecution he suffered was not for reasons of his religion; rather, the treatment he feared was as a consequence of violating a law of general application prohibiting the practice of religion in unregistered churches. The Full Court held that the RRT had erred in respect of both elements of its decision.
The leading judgment was that of Merkel J, with whom Wilcox and Gray JJ substantially agreed. Taking the second element first, Merkel J rejected the proposition that had been put to the Court that prosecution under generally applicable laws can never amount to persecution for a Convention reason. While this might be so in general, his Honour observed, regard must be had to the particular circumstances in each case and it must be considered whether such a law is enforced in a discriminatory way or has a discriminatory impact. Further, Merkel J held, a law ‘that targets or applies to persons by reason of their political opinions, religion, race or membership of a pre-existing social group, is not properly described as a law of general application. Such laws “target or apply only to a particular section of the population”.’ Consequently, the Chinese laws regulating the practice of religion were not laws of general application and punishment for breaching those laws could constitute persecution for a Convention reason.
In relation to the first element of the RRT’s decision, Merkel J identified two errors. First, he rejected the understanding of the term ‘religion’ for the purposes of the Convention as being confined to ‘a manifestation or practice of personal faith or doctrine’. He held that it must also be understood as including ‘the manifestation or practice of that faith or doctrine in a like-minded community’. The RRT, by concluding that the claimant could practise as a Protestant Christian at an authorised church, had disregarded the ‘community or congregational element of religious practice’ and had failed to determine whether the applicant faced persecution by reason of his past and intended practice of his religion in a like-minded community.
Merkel J also rejected as erroneous the proposition that, as the claimant could have practised in an authorised church, it was unnecessary or unreasonable for him to seek to practise in an unauthorised church. This approach, he held, was contrary to the principle established by recent cases that the fact that a claimant has brought or intends to bring into existence the circumstances that give rise to a fear of persecution by unnecessary, or even unreasonable, voluntary acts, is not determinative of an application for refugee status. Rather, the question in every case must be whether the claimant has a well-founded fear of persecution for a Convention reason. For these reasons, the Full Court remitted the matter to the RRT for further consideration.
As for the apparently contradictory decision in Zheng, the Court in Wang sought first to distinguish it on the basis that in the latter case there was evidence that there were significant differences between practising religion in an unauthorised and an authorised Protestant Church, whereas the RRT in Zheng had found that there were not such differences between Catholic churches. The Court in Wang also observed that the RRT in Zheng had based its decision on a finding that there was no significant religious belief that would prevent the claimant from practising in an authorised church. It had not considered or made any findings as to the congregational element of religion and whether there was any difference in religious practice between authorised and unauthorised churches. Ultimately, however, if Zheng could not be distinguished, the Court in Wang would have held that it had been wrongly decided.
Minister for Immigration and Multicultural Affairs v Savvin
 FCA 478; (2000) 171 ALR 483
Federal Court of Australia
Spender, Drummond and Katz JJ
The Refugees Convention defines as a refugee a person who:
… owing to a well-founded fear of being persecuted for [a Convention reason], is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 
The simple question that arose for decision in this case was that of the proper construction of the second half of the definition, specifically, whether the definition is satisfied by a person not having a nationality (a stateless person) who is unable to return to his or her country of former habitual residence, or whether a stateless person must further establish that he or she is outside the country of former habitual residence owing to a well-founded fear of being persecuted for a Convention reason. The Full Court of the Federal Court unanimously favoured the second construction, holding that the additional requirement was a part of the Convention definition.
The more interesting aspects of this decision for general purposes are the discussion of the proper approach to the interpretation of international instruments and specifically the Refugees Convention, of the relevance of foreign court decisions and legislation in the interpretation of the Convention, and of the relationship between the Refugees Convention and the 1967 Protocol Relating to the Status of Refugees (‘the Protocol’).
The leading judgment was that of Katz J, with whom Spender and Drummond JJ agreed. Contrary to the decision of the primary judge, and to the decisions of single judges of the Federal Court in a number of other cases, Katz J concluded that the natural or literal meaning of the second half of the Convention definition does include the additional requirement. He held that although it was not open to ignore or gloss over the semi-colon in the middle of the definition, it did not have the effect of separating the two parts of the definition. On the contrary, its effect was to provide that the opening phrase of the definition — ‘owing to a well-founded fear of being persecuted for [a Convention reason]’ — was impliedly incorporated in the second half of the definition, in respect of stateless persons.
Although his Honour considered the natural meaning to be ‘powerfully persuasive’, he nevertheless considered whether this accorded with the construction that ought to be given to the Convention definition. The primary judge, who had held that the natural meaning of the Convention definition did not include the additional requirement, had also held that there was nothing in the object and purposes of the Convention, the context of the definition, or the subsequent practice in the application of the Convention, to displace that construction. Before assessing these findings, Katz J first noted that reliance could not be placed directly on the Vienna Convention on the Law of Treaties, since, on its own terms, that Convention is applicable only in respect of treaties concluded subsequent to its entry into force. However, he regarded the Vienna Convention as constituting ‘an authoritative statement of the customary public international law rules for the interpretation of treaties’ and, on that basis, it could be referred to for the proper interpretation of treaty provisions.
On turning to consider the effect of these materials, Katz J left open whether any assistance for present purposes could be derived from either the travaux préparatoires or the other provisions of the Convention. As for the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (1979) as evidence of subsequent practice, Katz J rejected the primary judge’s characterisation of the judicial approach to the Handbook as attended by ‘a certain conservatism’. His view was that previous cases were authority for the proposition that ‘what the handbook says on any matter cannot be treated as conclusive, but … it may nevertheless be a useful constructional aid, depending on the circumstances; it is simply an element for courts to consider’. In the present case, Katz J concluded that his reading of the natural meaning of the definition was supported by the Handbook.
Katz J also observed that the construction he favoured was supported by the decisions of courts and by legislation in other countries. In respect of the former, he stated that ‘it is apparent that the construction given to the Convention by non-Australian courts should, so far as possible, be given weight by Australian courts, in an attempt to promote international uniformity in the operation of the Convention’. In respect of the latter, he observed that since legislation subsequently enacted by parties to a treaty can constitute evidence of the meaning attached to it by them, such evidence should, for similar reasons as for foreign court decisions, be given weight by Australian courts.
Finally, in the course of his decision, Katz J had the opportunity to comment on the relationship between the Refugees Convention and the Protocol. He observed that it is wrong to refer to the Protocol as having revised or amended the Convention, or as having altered its text in any respect. The Protocol is a separate agreement which was not brought into existence pursuant to the revision provision of the Convention. Consequently, there are in fact two instruments existing side-by-side, imposing similar substantive obligations, but where those under the Protocol apply to a more widely defined class of persons. However, for those states, such as Australia, that have accepted the obligations under both treaties, any error that comes from referring to the Protocol as having amended the Convention is of little practical significance.
Minister for Immigration and Multicultural Affairs v Sameh
 FCA 578
Federal Court of Australia
Mathews, Tamberlin & Mansfield JJ
Al-Amidi v Minister for Immigration & Multicultural Affairs
 FCA 1081; (2000-01) 177 ALR 506
Federal Court of Australia
In Sameh, the claimant was a person who had never had a nationality. He was born in Kuwait and had lived there until being deported to Iraq. Some years later, he left Iraq for Jordan where he remained until leaving for Australia. As he did not have a nationality, it was determined, for the purposes of the application of the Convention definition, that the country of his former habitual residence was Kuwait. The claimant satisfied the RRT that he had a well-founded fear of persecution for a Convention reason if he were to return to Kuwait. The RRT then considered whether either Iraq or Jordan were countries to which Australia could return the claimant without violating the Refugees Convention. This would be so if either country would accord effective protection to him and if he was able to return there. The RRT held that these criteria were satisfied in respect of both countries and accordingly rejected his application for refugee status.
A single judge of the Federal Court set aside the decision of the RRT on the basis that, as neither Iraq nor Jordan were parties to the Refugees Convention, neither of those countries could be a ‘safe third country’ for the purposes of the Convention. This was so even though it had been found, as a matter of fact, that the claimant would receive effective protection in both countries. This additional requirement was rejected by the Full Court which followed an earlier decision, the effect of which was that:
refoulement to a third country, which is not party to the Convention, means that Australia does not have protection obligations to that person under the Convention provided that that person may enter and remain in that third country without risk of persecution for a Convention reason. 
The Full Court also observed that, in particular circumstances, it would not be enough that a claimant had a right to enter the third country. It would also need to be established that he or she could reasonably get to the borders of that third country so as to obtain entry. In this case, there was evidence that entry to Iraq would require transit through Jordan and that the authorities in Jordan might not be willing to allow entry or transit to individuals who had previously left Iraq without official documentation. The failure of the RRT to consider this evidence and to make the necessary findings constituted reviewable error.
The decision in Sameh was applied analogously in Al-Amidi. The claimant in this case was a Shi’ite from southern Iraq who had actively opposed the ruling Ba’ath regime. Fearing continued persecution, he had fled to northern Iraq where he had managed to live for some time in relative safety until leaving to travel to Australia. The RRT rejected his application for refugee status on the basis that as he was able to relocate safely within Iraq, it was not necessary to determine whether he faced a well-founded fear of persecution in southern Iraq.
Justice Lee first cautioned that where the persecution feared by a claimant is for reasons of religion or political opinion, and the agent of that persecution is the government rather than any particular group against which that government is unable or unwilling to provide protection, it would normally follow that there would be no part of the claimant’s country in which he or she would not have a well-founded fear of persecution. However, the circumstances in a particular country might displace this presumption, as might be the case in respect of the protected Kurdish area in northern Iraq.
Justice Lee then observed that it was not sufficient to conclude that a claimant was able to relocate in a purely physical sense. It also had to be determined ‘whether it is reasonable, in all the circumstances, to expect that person to live’ in the safe area. What would be reasonable would depend on the circumstances, but would include an assessment of the degree of ‘satisfaction of the basic norms of civil, political and socio-economic human rights’ in the relocation area. In this respect, regard should be had to the personal characteristics of the claimant, such as his or her age, the ability to resume family life, and the ability to sustain himself or herself with dignity. In this case, the consideration of reasonableness should also have included such matters as the likelihood of the Ba’ath government resuming control in northern Iraq.
Finally, applying Sameh, Lee J held that it was not enough to determine that the claimant would obtain effective protection by relocation. The decision-maker was also required to satisfy itself that a claimant would, if returned to his or her country of origin, be reasonably able to make it to the identified safe area. The failure of the RRT to consider adequately these matters led Lee J to remit the matter for further consideration.
Singh v Minister for Immigration and Multicultural Affairs
 FCA 1125; (2001) 179 ALR 713
Federal Court of Australia
Ryan, Branson & Lehane JJ
Article 1F(b) of the Refugees Convention provides that a person otherwise entitled to the protection of the Convention will be excluded from that protection if there are serious reasons for considering that he or she ‘has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee’. The claimant’s application for refugee status in this case was rejected on this basis. The RRT found that the claimant was a member of an anti-government group in India and that he had supplied information and other assistance which had led to the murder of a police officer. It held that the motivation for the claimant’s actions was revenge for the police torture and killing of members of his group and not for reasons linked to the political objectives of his group. The RRT also found in relation to other alleged crimes that their gravity and lack of connection to the claimant’s group’s political objectives required them to be characterised as non-political.
On appeal, the Full Court of the Federal Court considered the concept of a ‘non-political crime’. It started by accepting the proposition that, although political motivation is essential to deprive a crime of non-political character, it was not always sufficient to do so. The Court then approved Lord Mustill’s speech in T v Home Secretary, in which his Lordship held that for a crime to be a political one, ‘there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and that the commission of the offence is an incident of this struggle’. The Court observed that in addition to the test of incidence, it was necessary to determine whether the nature of the particular crime was such as to render it non-political. In this context, the Court referred to considerations such as the seriousness of the crime, the degree of proportionality between the nature of the crime and the claimed political objectives, or whether the crime was particularly atrocious. However, it was not necessary for the disposition of the present appeal to go further than the proposition that ‘a crime will be non-political if it is calculated to cause death or injury indiscriminately to innocent persons not themselves involved in the political struggle.’
In reviewing the decision of the RRT, the Full Court found that the RRT had erred in characterising the claimant’s conduct as non-political merely because it was a ‘revenge’ killing. The Court held that where there was a political struggle in which government agents, including the police, tortured and killed members of opposition groups, there was no reason why crimes directed at those agents, even if they might be characterised as crimes of revenge, could not be regarded as political.
Cabal v Secretary, Department of Justice (Vic)
 FCA 949; 177 ALR 306
Federal Court of Australia
The applicant had been detained in Port Phillip Prison in Melbourne pursuant to warrants issued under the Extradition Act 1988 (Cth) following extradition being sought to Mexico. It was argued by the applicant that he was being held unlawfully as the facility was not a ‘prison’ for the purposes of the Act. It was also argued that ‘prison’ should be defined consistently with Australia’s obligations under the ICCPR.
In reviewing this matter, Gray J referred to the relevant provisions of Article 10 of the ICCPR providing that persons detained ‘shall be treated with humanity and with respect for the inherent dignity of the human person’ and that unconvicted persons be segregated from convicted persons. In this respect, it was noted that Australia maintains a reservation to Article 10 in the following terms:
In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively.
The status of the ICCPR in Australian law was reviewed by Gray J, with particular reference made to the decision in Minister for Immigration and Ethnic Affairs v Teoh. However, it was concluded that the Extradition Act was in conformity with the ICCPR, Gray J noting that at the time of its enactment Australia did not have an ‘absolute international obligation’ to ensure the segregation of unconvicted prisoners from convicted prisoners and under Australia’s reservation to the ICCPR such an obligation did not currently exist. Emphasis was given to the clear meaning of the Extradition Act in this respect.
It was further argued that s 11 of the Extradition Act allowed for the making of regulations subject to the provisions of any bilateral extradition treaty Australia is a party, which in this instance made provisions of the 1990 Treaty on Extradition between Australia and the United Mexican States operative. Article 25 of this Treaty provided:
Nothing in this Treaty shall affect any obligations which have been or shall in the future be assumed by both Parties under any multilateral convention.
Accordingly, it was argued that both the Extradition Act and the Treaty on Extradition had to be read subject to the provisions of the ICCPR to which both Australia and Mexico were parties.
Justice Gray rejected these arguments noting that Australia was not subject to absolute obligations under the Convention as a consequence of its reservation to the ICCPR. In addition, it was found that the terms of the Extradition Treaty did not incorporate all obligations under multilateral obligations. Rather:
It merely makes it clear that those obligations remain unaffected by the particular extradition treaty. Its task is not incorporation by reference and does not import into the Extradition Act as express limitations all of the provisions of all multilateral agreements to which Australia and Mexico are parties. Parliament cannot be taken to have intended to legislate into effect the terms of the ICCPR by such indirect means.
The application on these grounds was accordingly dismissed.
[∗] Trinity College, University of Cambridge.
[∗∗] Faculty of Law, University of Sydney.
[∗∗∗] In order to facilitate access by non-traditional means, the following footnotes incorporate a media-neutral format for case citations by including, where available, the paragraph number of the quotation or references. The paragraph number is included in parentheses after the traditional citation: eg HCA 55; , (2000) 175 ALR 585, 612 . All the judgments referred to may be accessed via <www.austlii.edu.au>.
 Minogue v Williams  FCA 1585; see discussion in D R Rothwell and B Olbourne ‘Australian Cases Involving Questions of Public International Law 1999’ (1999) 20 Aust YBIL 379-380.
 (19 December 1966), 999 UNTS 171;  ATS No 23.
  FCA 125 .
  SASC 257; see discussion in Rothwell and Olbourne, above n 1, 376-377.
  FCA 125 ; see Dietrich v The Queen  HCA 57; (1992) 177 CLR 292.
  ATS No 12.
  FCA 1854  referring to Fothergill v Monarch Airlines  UKHL 6;  AC 251, 294 (Lord Scarman); see also Somaghi v Minister for Immigration, Local Government & Ethnic Affairs  FCA 389; (1991) 31 FCR 100, 117 (Gummow J).
  FCA 1854 .
  ICJ Rep 319, 427-428 (Jessup J).
  FCA 1854 .
  AC 141, 157 (Viscount Dilhorne), 154 (Lord Wilberforce).
  FCA 1854  making reference to the comments in James Buchanan v Babco Forwarding & Shipping (UK)  AC 141, 154 by Lord Wilberforce that words in international instruments are ‘loosely drafted’ and ‘cannot be expected to be applied with taut logical precision’.
 See Kartinyeri v Commonwealth  HCA 22; (1998) 195 CLR 337.
  FCA 1192; see the discussion in Rothwell and Olbourne, above n 1, 361-365.
  FCA 91 .
 Ibid  referring to New South Wales v Commonwealth  HCA 58; (1975) 135 CLR 337, 388 (Gibbs J).
 Ibid .
 (9 December 1948), 78 UNTS 277;  ATS No 2.
  FCA 91 .
 It was noted that the foundation of this argument could have been comments made by Kirby P in Cachia v Hanes (1991) 23 NSWLR 304, 313.
  FCA 91 .
 Ibid .
 (23 May 1969), 1155 UNTS 331;  ATS No 2;  FCA 91 [73-74] referring to the provisions of the Foreign States Immunities Act 1985 (Cth).
  FCA 91 [75-78] making reference to the decision in Thorpe v Commonwealth No 3  HCA 21; (1997) 144 ALR 677; see discussion in D R Rothwell ‘Australian Cases Involving Questions of Public International Law 1997 and 1998’  AUYrBkIntLaw 6; (1998) 19 Aust YBIL 119-120
 Support for this argument was found in the provisions of the 1959 Declaration of the Rights of the Child, UNGA Res 1386 (XIV) (20 November 1959); International Covenant on Economic, Social and Cultural Rights (19 December 1966), 993 UNTS 3,  ATS No 5; 1966 International Covenant on Civil and Political Rights, above n 2, and the 1989 Convention on the Rights of the Child  ATS No 4.
 (18 December 1979), 1249 UNTS 13;  ATS No 9.
  FCA 1009; (2000) 177 ALR 320, 325 .
 Ibid 325 .
 This case has gone on appeal to the High Court of Australia in 2001.
 (28 July 1951), 189 UNTS 150;  ATS No 5.
 The RRT is the body designated to review de novo the decisions of the Minister, or of the Minister’s delegate, in relation to applications for refugee status. A limited right of appeal from the decision of the RRT lies, in the first instance, to a single judge of the Federal Court of Australia.
  FCA 299; (1999) 162 ALR 105; see Rothwell and Olbourne, above n 1, 373-374. Leave to appeal to the High Court had also been granted in this case, and it was to be heard jointly with Haji Ibrahim. However, the departure from Australia of the claimant before commencement of the oral hearings led to the withdrawal of the appeal.
  FCA 299; (1999) 162 ALR 105, 112.
  UKHL 15;  1 AC 293.
 Ibid 308.
 Ibid 302.
 Ibid 311.
 Gleeson CJ, Gummow, Hayne and Callinan JJ; Gaudron, McHugh and Kirby JJ dissenting.
  HCA 55; (2000) 175 ALR 585, 612 .
 Ibid 648  (Callinan J).
 Ibid 612 , 623-624 .
 Ibid 624 .
 Ibid 624 ; see also 642  (Hayne J).
 Ibid 624 . Gleeson CJ and Hayne J were of the opinion that such notions may be useful in some factual circumstances, but should not be regarded as essential elements in the Convention definition or its application: ibid 587 , 641 .
 Ibid 625 . See also 646  (Callinan J).
 Ibid 622 .
 Ibid 623 .
 Ibid 602 , .
 Ibid 600 .
 Ibid 609 
 Ibid 610 -.
 See eg, ibid 630 -, 631 , 638 .
 Ibid 591 .
 Ibid 592 .
 Ibid 592 -.
 Eg, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
  HCA 55; (2000) 175 ALR 585, 589 , 605-609 -, 616 -, 618 , 636-637 -, 646-647 -.
 See Chan Yee Kin v Minister for Immigration and Ethnic Affairs, above n 57, 429-430.
  HCA 55; (2000) 175 ALR 585, 609 .
 This is the term used by Gummow J: ibid 625-627 -.
 In R v Secretary of State for the Home Department; Ex parte Adan  EWCA Civ 1948;  3 WLR 1274, the English Court of Appeal held that the protection of the Convention does extend to such situations. See also R v Secretary of State for the Home Department; Ex parte Adan  UKHL 67;  1 All ER 593 (HL).
  HCA 55; (2000) 175 ALR 585, 625-626 .
 Ibid 601 .
 Eg, Chan Yee Kin v Minister for Immigration and Ethnic Affairs, above n 57; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
 It was accepted throughout that although the claimant was too young himself to manifest a well-founded fear, it was sufficient that his parents’ fears on his behalf were well-founded.
 Gleeson CJ, Gaudron, Gummow and Hayne JJ. Kirby J delivered a concurring judgment.
 Applicant A v Minister for Immigration and Ethnic Affairs, above n 65.
  HCA 19; (2000) 201 CLR 293, 301-302 .
 Ibid 302 .
 Ibid 300 , referring to Applicant A v Minister for Immigration and Ethnic Affairs, see above n 65, 242-243 per Dawson J.
  HCA 19; (2000) 201 CLR 293, 304 . The Court was here quoting from the judgment at first instance of French J.
 Ibid 304 .
 Ibid 304 .
 Ibid 305 .
 Ibid 305 .
 Ibid 302-303 .
 Ibid 303 , quoting Applicant A v Minister for Immigration and Ethnic Affairs see above n 65, 259 (McHugh J).
  HCA 19; (2000) 201 CLR 293, 303 .
  FCA 1130; (2001) 178 ALR 120, 149 , 152  (Lindgren J with whom Mathews J agreed). Hill J dissented.
 See commentary above.
  FCA 1130; (2001) 178 ALR 120, 151 .
 Ibid 151-154 -, 157 . Reference was made to Islam v Secretary of State for the Home Department  UKHL 20;  2 AC 629.
  FCA 1130; (2001) 178 ALR 120 .
 Ibid 159-160 .
 Ibid 155 .
 Spender and French JJ; Carr J dissenting.
  FCA 576; (2000) 173 ALR 23, 39  (French J). The Court approved of the decision of the English Court of Appeal in Danian v Secretary of State for the Home Department  EWCA Civ 3000;  Imm A R 96;  INLR 533. See also G S Goodwin-Gill, ‘Danian v Secretary of State for the Home Department. Comment: Refugee Status and “Good Faith”’ (2001) 12 International Journal of Refugee Law 663.
  FCA 576; (2000) 173 ALR 23, 26  (Spender J).
 Ibid 37 .
 Ibid 38 .
 Ibid 38 .
  FCA 1430; (2001) 179 ALR 525, 533-537 -.
 Ibid 536 . The Court approved of the decision of the English Court of Appeal in Ahmed (Iftikhar) v Secretary of State for the Home Department  EWCA Civ 3003;  INLR 1.
  FCA 1430; (2001) 179 ALR 525, 536-537 , 537-538 .
 Ibid 537-538 -.
 Ibid 537 .
 Ibid 538 .
  FCA 1599  (Hill J, with whom Whitlam J,  and Carr J, on this point, , agreed).
 Ibid . On the question of the governance of the church, the evidence showed that the official church was required to be self-supporting and self-propagating with choice of bishops being left to Chinese authorities rather than the Vatican.
  FCA 1599; (2001) 179 ALR 1, 15 .
 Ibid 15 , quoting from Chen Shi Hai v Minister for Immigration and Multicultural Affairs see commentary above, 301 .
  FCA 1599; (2001) 179 ALR 1, 21 . See also 6  (Gray J).
 Ibid 18 . Merkel J referred to art 18 of the Universal Declaration of Human Rights and art 18(1) of the 1966 International Covenant on Civil and Political Rights, above n 2, to support his construction of the term ‘religion’. Wilcox J preferred not to use these instruments as the legitimacy of having regard to them had not been fully explored before the Court. He was of the opinion that the communal element was inherent in the ordinary meaning of the term:  FCA 1599; (2001) 179 ALR 1, 3 .
 Ibid 21-22 .
 Minister for Immigration and Multicultural Affairs v Mohammed, see commentary above; Omar v Minister for Immigration and Multicultural Affairs, see commentary above.
  FCA 1599; (2001) 179 ALR 1, 18-20 -, 21 -.
 Ibid 22 .
 Ibid 23 .
 Ibid 23 .
 Refugees Convention, above n 31, art 1. This definition is outlined in the text accompanying n 31.
 (4 October 1967), 606 UNTS 267;  ATS No 37.
 Eg, Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421; Al-Anezi v Minister for Immigration and Multicultural Affairs  FCA 355; (1999) 92 FCR 283. See also Diatlov v Minister for Immigration and Multicultural Affairs  FCA 468; (1999) 167 ALR 313, noted in Rothwell and Olbourne, above n 1, 371.
  FCA 478; (2000) 171 ALR 483, 500 .
 Ibid 501 -. Drummond J was reluctant to place as much weight on matters of punctuation: 488 , 489 .
 Ibid 511 .
 Ibid 502-503 -. Vienna Convention on the Law of Treaties, above n 24, art 4. Cf Applicant A v Minister for Immigration and Ethnic Affairs, above n 65.
  FCA 478; (2000) 171 ALR 483, 502 .
 Ibid 505 .
 Ibid 507 .
 Ibid 511 .
 Ibid 511 . Katz J referred to the decision of the House of Lords in Adan v Secretary of State for the Home Department, above n 62.
  FCA 478; (2000) 171 ALR 483, 512 . Katz J referred to Canadian legislation implementing the Convention definition that expressly set out the additional requirement: Immigration Act (RSC 1985, c I-2), s 2(1).
  FCA 478; (2000) 171 ALR 483, 508-510 -.
 See art 45.
  FCA 478; (2000) 171 ALR 483, 510 .
 In particular, art 33 which provides 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.’
 See eg, Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.
  FCA 578 , following Minister for Immigration and Multicultural Affairs v Al-Sallal  FCA 1332.
  FCA 578 , .
  FCA 1081; (2000-1) 177 ALR 506, 509 -.
 Ibid 510 .
 Ibid 510 .
 Ibid 510 .
  FCA 1125; (2001) 179 ALR 713, 720 .
  UKHL 8;  AC 742, 764.
  FCA 1125; (2001) 179 ALR 713, 721 .
 Ibid 721-722 .
 Ibid 722 .
  FCA 949; (2000) 177 ALR 306, 314 .
  HCA 20; (1995) 183 CLR 273.
 (2000) 177 ALR 315 .
 1642 UNTS 95;  ATS No 13.
 (2000) 177 ALR 316 .