INTERNATIONAL
ASSOCIATION
OF REFUGEE LAW JUDGES
(IARLJ)
World Conference,
Stockholm, 21 April 2005
JUDICIAL OR
ADMINISTRATIVE PROTECTION OF ASYLUM-SEEKERS -
CONTENT OR FORM?
Rodger Haines QC1
INDEX
Introduction
The duty of good
faith
Domestic
incorporation - manner and form
Domestic
incorporation - interpretation of the Refugee
Convention
The question of natural
justice and fairness - impartiality and
independence
The question of appeal
and judicial review
Concluding Observations
[1] It is sometimes said that
administrative and judicial systems are different. Whether that
is true or not is most often debated at a rather abstract level and
possibly coloured by subjective experiences. Common law lawyers
in particular seem unusually vulnerable to presuming an innate
superiority of the common law model which emphasises judicial
protection, even while administrative adjudication continues to
proliferate in most common law jurisdictions and while civil disputes
move ever more into alternative, non-judicial forms of conflict
resolution.
[2] This paper does not enter
the debate as to the supposed divide between administrative rather than
judicial protection. The position taken is that in the refugee
context these are largely false opposites. The real question is
whether the particular legal system delivers effective protection under
the Refugee Convention. This transcends a more myopic view which
falsely assumes that administrative protection is necessarily inferior
to judicial protection. An administrative system may in some
countries be as effective, if not more so, in delivering meaningful
protection than a judicial system and vice-versa. In other
countries only a mix of the two systems working together produces the
desired result. As of 31 March 2005 there were 145 States parties
to either the 1951 Convention or the 1967 Protocol or both of these
instruments. The legal systems of these countries are so diverse
that it would be artificial to construct a supposed polarity between
administrative and judicial protection.
[3] A more pragmatic, and
hopefully more useful approach, is proposed namely to pose the question
“Does the domestic legal system ensure the good faith observance by the
State party of its obligations under the Refugee Convention?”
[4] The core purpose of the
Refugee Convention is to protect those at real risk of being persecuted
for a Convention reason from being returned to their country of
origin. The question to be addressed is how well that obligation
is implemented at domestic level. It is the effective discharge
of the protection obligation which is important, not the particular
delivery system. All legal systems, whether based primarily on an
administrative system or a judicial system, must be measured against
this single overarching criterion.
[5] What this paper does is to
identify and briefly discuss an admittedly limited set of factors which
may impact on the level of protection delivered by a particular system.
[6] First it is important to
note the nature of the fundamental duty of any State party which enters
into treaty obligations. It is the duty of good faith observance
of the Treaty.
The
duty of good faith
[7] The obligations assumed by
a State party under the Refugee Convention are mandatory and of
immediate binding effect. Each of Articles 3 to 34 employs the
mandatory “shall”. They are duties of result. See
particularly the all important Articles 16 and 33:
Article
16. - Access to courts
1. A refugee shall have
free access to the courts of
law on the territory of all Contracting States.
2. A refugee shall
enjoy in the Contracting State in
which he has his habitual residence the same treatment as a national in
matters pertaining to access to the courts, including legal assistance
and exemption from cautio judicatum
solvi.
3. A refugee shall
be accorded in the matters
referred to in paragraph 2 in countries other than that in which he has
his habitual residence the treatment granted to a national of the
country of his habitual residence.
Article
16. -- Droit d'ester en justice
1. Tout
réfugié aura, sur le
territoire des États contractants, libre et facile accès
devant les tribunaux.
2. Dans
l'État contractant où il a sa
résidence habituelle, tout réfugié jouira du
même traitement qu'un ressortissant en ce qui concerne
l'accès aux tribunaux, y compris l'assistance judiciaire et
l'exemption de la caution judicatum
solvi.
3. Dans les
États contractants autres que
celui où il a sa résidence habituelle, et en ce qui
concerne les questions visées au paragraphe 2, tout
réfugié jouira du même traitement qu'un national du
pays dans lequel il a sa résidence habituelle.
Article
33. - Prohibition of expulsion or return ("refoulement")
1. 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.
2. The benefit of
the present provision may not,
however, be claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he is, or
who, having been convicted by a final judgement of a particularly
serious crime, constitutes a danger to the community of that country.
Article
33. -- Défense d'expulsion et de refoulement
1. Aucun des États
contractants n'expulsera
ou ne refoulera, de quelque manière que ce soit, un
réfugié sur les frontières des territoires
où sa vie ou sa liberté serait menacée en raison
de sa race, de sa religion, de sa nationalité, de son
appartenance à un certain groupe social ou de ses opinions
politiques.
2. Le
bénéfice de la présente
disposition ne pourra toutefois être invoqué par un
réfugié qu'il y aura des raisons sérieuses de
considérer comme un danger pour la sécurité du
pays où il se trouve ou qui, ayant été l'objet
d'une condamnation définitive pour un crime ou délit
particulièrement grave, constitue une menace pour la
communauté dudit pays.
[8] The Convention, however, is
of course silent as to how these mandatory obligations of a State
party are to be implemented at domestic level. Few legal systems
are the same and the assumption is that each State party will observe
the principle pacta sunt servanda. Domestic law cannot justify failure
to perform a treaty. Principles of customary international law
codified in the Vienna Convention on the Law of Treaties, 1969 are
clear2:
Article
26
Pacta sunt servanda
Every
treaty in force is binding upon the parties to it and must be performed
by them in good faith.
Article 27
Internal law and observance of treaties
A
party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.
[9] Article 18 of the Vienna
Convention on the Law of Treaties further obliges a State to refrain
from acts which would defeat the object and purpose of a treaty by
which it is bound.
[10] Similarly the Refugee
Convention, while providing a comprehensive definition of the term
“refugee”, does not prescribe any particular form of procedure for
determining refugee status. It is implicit in the good faith
obligation and in the guarantee of the right of access to courts that
the procedures will maximise the opportunity for a refugee claimant to
establish that he or she is a refugee which in turn maximises State
observance of the non-refoulement obligation. Fairness is an
indispensable aspect of such procedures3, as is the
need for the
procedures to be both prescribed by law and subject to the scrutiny of
the courts of law on the territory of the State party.4
[11] Above all, however, are
the points made by Professor James C Hathaway in the Canadian context5:
(a) There must be a recognition that refugee
claimants are not opponents or threats, but rather persons seeking to
invoke a right derived from international law.
(b) The refugee criteria must be applied
dispassionately, recognising that refugee determination is among the
most difficult forms of adjudication, involving as it does fact-finding
in regard to foreign conditions, cross cultural and interpreted
examination of witnesses, ever present evidentiary voids and a duty to
prognosticate potential risks rather than simply declare the more
plausible account of past events.6
(c) These evidentiary and contextual concerns make
departure from traditional modes of adjudication imperative.
Rather than “technocratic justice”, cases demand what Professor James C
Hathaway has described as “expert, engaged, activist decision-makers
who will pursue substantive fairness”.7
[12] While the prescription may
be clear, implementation of the Refugee
Convention at the domestic level can be less than
straightforward. Because the Convention prescribes no particular
procedure for determining refugee status, it is not “self-executing”
for those states which take the monist approach to treaty
incorporation. In this respect the Refugee Convention is not
capable of being applied at domestic law without new legislation.8
[13] States which subscribe to
the dualist approach would require
legislation in any event.9
Domestic
incorporation - manner and
form
[14] How much of the
Refugee Convention is incorporated domestically is
just as important a question as how
incorporation itself is
achieved. There is a marked reluctance to incorporate the entire
Convention. The failure by Australia, for example, to adopt this
simple expedient has led to Byzantine complexities.10
There is a
decided preference to adopt only the definition in Article 1A(2) (or a
modified version of it). Canada has not incorporated Article
1D.11 The Dutch definition apparently does not
include the
cessation and exclusion clauses of Articles 1C, D, E and F.12
There
is also a tendancy to paraphrase the Convention “well-founded fear of
being persecuted” into “well-founded fear of persecution”,
as in the
case of Canada, Australia and the USA.13 This
can lead to
dangerous
distortions as in the nexus or causation requirement.
[15] The Refugee Convention
employs the passive voice “well-founded
fear of being
persecuted”. These words emphasise that the refugee
definition has as its focus the predicament of
the refugee. The
Convention defines refugee status not on the basis of a risk of
“persecution” but rather a risk of “being persecuted”. The
language draws attention to the fact of exposure to the harm rather
than to the act of inflicting harm. In the result:
(a) The focus is on the reasons for the predicament
of the refugee claimant rather than on the mindset of the
persecutor. The holding of the US Supreme Court in Immigration
and Naturalisation Service v Elias-Zacarias14
to the contrary
that the
mindset or intention of the persecutor is essential must be seen in the
light of the fact that the Immigration and Nationality Act s 208(a)
(codified at 8 USC para 1108(a)(42)) is differently worded (a
well-founded fear of persecution on account of) to Article 1A(2)
(well-founded fear of being
persecuted for reasons of).15 Contrast
the decision of the High Court of Australia in Chen Shi Hai v Minister
for Immigration and Multicultural Affairs16
and that of the New
Zealand
Refugee Status Appeals Authority in Refugee
Appeal No. 72635/0117.
(b) The better view, based on the text of the Refugee
Convention itself and not on a modified or paraphrased version thereof,
is that it is sufficient for the refugee claimant to establish that the
Convention ground is a contributing cause to
the risk of “being
persecuted”. It is not necessary for that cause to be the
sole
cause, main cause, direct cause, indirect cause or “but for”
cause. It is enough that a Convention ground can be identified as
being relevant to the cause of the risk of being persecuted.
However, if the Convention ground is remote to the point of
irrelevance, causation has not been established.18
[16] As Joan Fitzpatrick has
pointed out, Elias-Zacarias
illustrates
the dangers of a domestic asylum system disconnected from an
international framework.19 The same observation
could be made of
the provision in the Australian Migration Act 1958 (Cth), s 91R(1)(a)
which requires decision-makers to recognise only the “essential and
significant reasons for the persecution”.
[17] The point of these
examples drawn from the USA and Australia is
that the reach of the protection afforded by the Refugee Convention can
be impeded to a dangerous degree by the manner and form of domestic
incorporation. Particularly where the domestic legislation not
only departs from the text of the Convention, but also seeks to impose
a particular “vision” of what the definition ought to be20.
In the
EU context this vision has been described as “tunnel vision”.21
[18] In these circumstances
there is little opportunity for the system
to self-correct, unless there is a Constitution or other fundamental
law which allows tribunals or courts to substitute the actual (and
binding) terms of the Refugee Convention for the non-conforming
language employed in the domestic legislation. As a general rule
judicial protection would, in these circumstances, afford a higher
level of protection to the sometimes hierarchically inferior
administrative processes.
Domestic
incorporation -
interpretation of the Refugee Convention
[19] Whether perfectly or
imperfectly incorporated into domestic law
the Refugee Convention will potentially raise a number of difficult
interpretation issues, particularly in relation to the Inclusion and
Exclusion clauses. The degree to which a particular system
facilitates a full and informed debate of these interpretation issues
is a significant measure of the integrity of that system.
[20] Experience shows that it
is unlikely (though not impossible) for a
first or even second instance tribunal or court to chance on the “true”
interpretation of the Refugee Convention the first time a particular
issue arises. There are considerable advantages in the
opportunity for further argumentation and consideration at higher
administrative or judicial levels, provided the relevant body is
independent and possessed of the expertise necessary to interpret and
apply an international human rights instrument. The advantages of
higher consideration are substantial. The process as a whole has
greater legitimacy and the ruling (hopefully “correct”) in the
individual case will provide a precedent by which other refugee claims
will be determined. There is opportunity for the development of a
principled interpretation of the Refugee Convention in accordance with
accepted principles of treaty interpretation. This too is a
substantial component of the duty to be fair. But unfortunately
error-free jurisprudence cannot be guaranteed. Mistakes will
occur, as in the case of the “well-founded fear” standard which the
common law world unjustifiably interprets as mandating both objective
and subjective components. This is an unsupportable
interpretation and not one which prevails in civil jurisdictions.22
A degree of humility is required for false jurisprudence to be
abandoned.
The question of natural
justice and
fairness - impartiality and
independence
[21] There is a direct
connection between the good faith discharge of
the obligations (of result) under the Refugee Convention and procedural
due process. Giving a refugee claimant a fair hearing is a
necessary precondition to the accurate determination of whether the
non-refoulement obligation of the State is engaged in relation to that
specific individual. In this context procedural rights perform an
instrumental role in the sense of helping to attain an accurate
decision on the substance of the case.23 Formal
justice and the
rule of law are enhanced in the sense that the principles of natural
justice or fairness help to guarantee objectivity and
impartiality.24
[22] In a paper of limited
scope it is not possible to do more than
mention the centrality of fair procedures to the good faith observance
of the obligations under the Refugee Convention. There can be
much debate as to the minimum content of those procedures, as is
currently occurring within the European Union in the context of Article
6 of the ECHR generally25 and in the asylum and human
rights context
specifically. See most recently the Qualifications Directive
adopted by the Council of the European Union on 29 April 2004
(implementation date 10 October 2006) and the Procedures Directive
(draft).26 It is necessary, however, to touch
on the issue of
impartial decision-making and independence.
[23] At the 5th IARLJ
Conference held at Wellington, New Zealand in
October 2002 Sir Stephen Sedley memorably articulated the overt and
covert pressures on asylum judges which are capable of affecting the
impartiality of their decision-making and which render their
independence fragile.27 As he rightly points
out, the critical
function of first-instance asylum judges in the majority of the world’s
developed jurisdictions is the function of fact-finding. Many,
perhaps most, decisions have to be arrived at only after determining
whether the refugee claimant is telling the truth and, if not, what the
truth is.28 He has judicially described this
function as:
“... not a Conventional
lawyer’s exercise of
applying a legal litmus test to ascertained facts; it is a global
appraisal of an individual’s past and prospective situation in a
particular cultural, social, political and legal milieu, judged by a
test which, though it has legal and linguistic limits, has a broad
humanitarian purpose.”29
[24] Addressing the
difficulties of credibility evaluation he referred
in his paper to what he calls the “darker hinterland in which judges
... have to do their unaided best to decide whether an account is
credible or not”30:
It is in such a
situation, where there is frequently
so little firm or objective help to be gained from materials before the
judge and where so much depends on personal impression and visceral
reaction, that the demands of independence and impartiality become
acute. I suspect that a truly impartial outcome in a high
proportion of asylum cases would be a draw. But that is the one
luxury denied to judges. Setting the standard for a successful
claim well below truth beyond reasonable doubt and even below a
preponderance of probability, and limiting it to the establishment of a
real risk, may help the asylum-seeker but does not ultimately help the
asylum judge. A possible life-and-death decision extracted from
shreds of evidence and subjective impressions still has to be made.
Not only for these
substantive reasons but for
procedural reasons too, asylum adjudication calls up a very particular
version of impartiality. In ordinary civil and criminal contests,
impartiality implies no more than not taking sides, at least until one
has heard the evidence and the argument. In asylum law, except to
the extent that the state takes on itself the role of the
asylum-seeker’s adversary, there are no such sides. In an
exercise which is typically one of testing assertions, not of choosing
between two stories, the form which impartiality most typically
takes for the judge is abstention from pre-ordained or conditioned
reactions to what one is being told. It means not so much knowing
others as knowing oneself - perhaps the hardest form of knowledge for
anyone to acquire.
[25] These insights highlight
the necessity to afford the refugee
claimant a fair hearing. The rule of law requires nothing
less. It enforces minimum standards of fairness, both substantive
and procedural.31 It maximises the opportunity
for the “voice” of
the claimant to be heard above the decision-maker’s own prejudices,
conditioned reactions, doubts and the subconscious influence of public
opinion and hostile comment. Above all it ensures that the
decision-maker’s mind is concentrated on the single composite issue
posed by Articles 1A(2) and 33 of the Refugee Convention: Is this
individual at real risk of being persecuted for a Convention reason if
returned to the country of origin?
[26] This is not a prescription
for over-sophistication and complexity
in refugee determination. A balance must be struck between
over-judicialisation at the primary level and over-pragmatism at the
higher levels. Refugee protection includes a requirement that the
principles of refugee law be articulated with clarity and simplicity to
facilitate consistent application. A refugee determination
process must also be “nimble on its feet”, responding rapidly to new
refugee situations and new understandings of the Convention which is,
after all, a “living instrument”.32 This is
especially important in
the context of claims based on gender, age, disability and sexual
orientation.
The question of appeal
and judicial
review
[27] Because so much of the
practical implementation and application of the Refugee Convention is
done by government or executive action or policy and because so much of
the process and conditions for applying for refugee status can be
controlled and influenced by the executive, there must be a means of
effective challenge to a higher authority with power to review on both
the merits and the law.33
[28] Given the interests
involved, both of the individual and of the State, most systems allow
for an appeal and/or judicial review in one form or another. The
tendency, however, is to restrict rather than expand such appeal or
judicial review rights. Where restriction occurs, the perception
is that the system is over-generous to declined asylum-seekers or that
the system is being abused. These are legitimate concerns, but
can be managed in different ways. A standard of excellence at the
primary decision-making level is a much under-appreciated means of
increasing the overall speed of the decision-making process, reducing
appeals or review, reducing costs and engendering confidence in the
refugee determination system.
[29] The overarching
requirement, however, at all levels of a refugee determination system
is that irrespective of whether the system is characterised as
“administrative” or “judicial”, all decision-makers must be both
independent and impartial.34
[30] Neither judicial nor
administrative systems have innate superiority in refugee
determination. They are false opposites. The more relevant
inquiry is how well a particular asylum process accurately and fairly
identifies individuals who satisfy the definition of “refugee” in the
Refugee Convention. The challenge is to identify the factors
which have the potential to either impede or to facilitate the
protection of asylum-seekers and refugees in the refugee determination
process, irrespective of the legal “tradition” of the particular State
party and irrespective of the particular domestic system employed for
refugee determination. Content must prevail over form.
[31] This paper has suggested
that often-overlooked factors have a greater influence on the outcome
of refugee determination than generally recognised. These factors
include the way in which and the degree to which the Convention itself
is incorporated into domestic law, the degree to which the particular
domestic system will allow and facilitate a purposeful and dynamic
interpretation of the Convention in accordance with its language,
context, object and purpose and the degree to which fairness is allowed
to intrude into the determination process. Independence and
impartiality are the essential foundation stones of any credible
process, as is the existence of a right of appeal or review to an
independent judicial or administrative body.
1
The author is a barrister in private practice, lecturer in law at the
Faculty of Law, Auckland University and is also Deputy Chairperson of
the New Zealand Refugee Status Appeals Authority. The opinions
expressed in this paper are the personal views of the author.
2 Libya v Chad ICJ Reports (1994) 4
at [41]; Minister for Immigration
and Multicultural Affairs v Savvin (2000) 171 ALR 483 (FC:FC) at
[14] & [90] - [91] per Drummond & Katz JJ; Refugee Appeal No. 74665/03 [2005]
NZAR 60 at [45] (NZRSAA).
3 See, for example,
the recent
analysis of the EU proposals by Sylvie Da Lomba in The Right to Seek Refugee Status in the
European Union (Intersentia, 2004) Chapter V and the earlier
discussion by Guy Goodwin-Gill, “The Individual Refugee, the 1951
Convention and the Treaty of Amsterdam” and by Johannes van der Klaauw,
“Towards a Common Asylum Procedure” in Elspeth Guild & Carol Harlow
(eds), Implementing Amsterdam:
Immigration and Asylum Rights in EC Law (Hart, 2001) 141, 155,
165, 172.
4 Thomas
Spijkerboer, “Higher
Judicial Remedies for Asylum Seekers - An International Legal
Perspective” in IARLJ, Asylum Law:
First International Judicial Conference (1995) 217 at 219-224
commenting on the Article 13 ECHR obligation to provide an effective
remedy and the Article 16 Refugee Convention obligation to provide free
access to courts of law.
5 James C Hathaway,
Rebuilding Trust: Report of the
Review of
Fundamental Justice in Information Gathering and Dissemination at the
Immigration and Refugee Board of Canada (December 1993) 7.
6 Ibid 6. See
also UNHCR, Handbook on Procedures
and Criteria for
Determining Refugee Status para 47.
7 James C Hathaway,
Rebuilding Trust: Report of the
Review of
Fundamental Justice in Information Gathering and Dissemination at the
Immigration and Refugee Board of Canada (December 1993) 7 cited
in Pushpanathan v Canada (Minister
of Citizenship and Immigration) [1998] 1 SCR 982 (SC:Can) at
[41] per Bastarache J.
8 For a brief
description of the
monist approach and examples (France, Germany, The Netherlands, Poland,
Russia, Switzerland) and an explanation of the dualist approach (UK)
and a discussion of the way treaties are dealt with under the
Constitution of the USA, see Anthony Aust, Modern Treaty Law and Practice
(Cambridge, 2000) at 143-161.
9 See for example NAGV and NAGW of 2002 v Minister for
Immigration and Multicultural and Indigenous Affairs (2005) 213
ALR 668 (HCA) at [17] & [35].
10 See for example
NAGV and NAGW of 2002 v Minister for
Immigration and Multicultural and Indigenous Affairs (2005) 213
ALR 668 (HCA) addressing inter alia
“The phrase ‘protection obligations under the Refugees Convention’ in s
36 of the Migration Act 1958 (Cth).
11 This was the
position under the
Immigration Act 1985 and remains the position under the Immigration and
Refugee Protection Act 2001.
12 Dirk Vanheule,
“The Netherlands”
in Jean-Yves Carlier, Dirk Vanheule et al (eds), Who is a Refugee? A Comparative Case Law
Study (Kluwer, 1997) at 479, 481.
13 Immigration and
Refugee
Protection Act 2001, s 96 (Can). The Migration Act 1958 (Cth) ss
91R, 91S, 91T & 91U legislatively stipulate the meaning of
“persecution”, “membership of a particular social group”,
“non-political crime” and “particularly serious crime” for the purposes
of Australian Federal Law; for the USA see the definition of “refugee”
in the Immigration and Nationality Act para 101(a)(42)(A); 8 USCA para
1101(a)(42)(A).
14 Immigration
and Naturalisation Service v Elias-Zacarias 502 US 478 (1992).
15 See further
Shayna S Cook,
“Repairing the Legacy of INS v
Elias-Zacarias” (2002) 23 Mich J Int’l L 223.
16 Chen
Shi Hai v Minister for Immigration and Multicultural Affairs
(2000) 201 CLR 293 at [33] (HCA).
17 Refugee
Appeal No. 72635/01 [2003] INLR 629 at [168] (NZRSAA).
18 Michigan Guidelines on Nexus to a
Convention Ground (2002) 23 Mich. J. Int’l L. 210 and see Refugee Appeal No. 72635/01 [2003]
INLR 629 at [167] to [178] (NZRSAA). This approach has been
adopted by the UNHCR in recently issued Guidelines, specifically the
UNHCR, Gender-Related Persecution
within the context of Article 1A(2) of the 1951 Convention and/or its
1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01,
7 May 2002) at para 20. See also the discussion by Karen Musalo,
“Claims for Protection Based on Religion or Belief” 16 IJRL (2004) 165,
205-212.
19 Joan
Fitzpatrick, “The International Dimension of US Refugee Law” 15
Berkeley J Int’l Law (1997) 1, 21. There have been bitter
divisions in the Supreme Court of the United States on the relevance of
international human rights norms. See particularly Lawrence v Texas (2003) 156 L Ed 2d
508, particularly the dissenting decision of Justice Scalia at
539. Note the apparently contradictory position taken by Justice
Scalia and Justice Sandra Day O’Connor in Olympic Airways v Husain 124 S Ct
1221 (2004) noted in “Supreme Court’s Use of Court Decisions of Treaty
Partners” (2004) 98 American Journal of International Law 579.
20 See generally
Alice Edwards, “Tampering with Refugee Protection: The Case of
Australia” 15 IJRL (2003) 192, 202-204; Roz Germov & Francesco
Motta, Refugee Law in Australia
(Oxford, 2003) 189-192; Shayna S Cook, “Repairing the Legacy of INS v Elias-Zacarias” (2002) 23
Mich J Int’l L 223, 243.
21 Rosemary Byrne,
Gregor Noll & Jens Vedsted-Hansen, “Understanding Refugee Law in an
Enlarged European Union” (2004) 15 EJIL 355, 371.
22 See most
recently the Michigan Guidelines on
Well-Founded Fear (disponible aussi en français Les Recommandations de Michigan sur la
crainte avec raison)
<http://www.refugeecaselaw.org/fear.asp> and James C Hathaway
& William S Hicks, “Is There a Subjective Element in the Refugee
Convention’s Requirement of “Well-Founded Fear”? (2005) 26 Mich.
J. Int’l L 505.
23 PP Craig, Administrative Law 5th ed (Sweet
& Maxwell, 2003) 408.
24 Ibid, 408.
25 Sylvie Da
Lomba, The Right to Seek Refugee
Status in the European Union (Intersentia, 2004) 173; Paul
Craig, “The Human Rights Act, Article 6 and Procedural Rights [2003] PL
753; Jurgen Schwarz, “Enlargement, the European Constitution and
Administrative Law” (2004) 53 ICLQ 969 and Wade & Forsyth, Administrative Law 9th ed (Oxford,
2004) 445-449.
26 Sylvie Da Lomba, The Right to Seek Refugee Status in the
European Union (Intersentia, 2004) 173; Robert Thomas, “The
Proposed Procedures Directive - its likely impact on national
decision-making and its compatibility with European Union law and the
European Convention on Human Rights” (paper delivered at the IARLJ
Conference, Edinburgh, November 2004).
27 Sir Stephen
Sedley, “Asylum: Can the Judiciary Maintain its Independence?”, IARLJ, Stemming the Tide or Keeping the Balance -
the Role of the Judiciary (2002) 319.
28 Ibid 323.
29 R v Immigration Appeal Tribunal; Ex parte
Syeda Khatoom Shah [1997] Imm AR 145, 153 approved on appeal in R v Immigration Appeal Tribunal; Ex parte
Shah [1999] 2 AC 629 (HL).
30 Sir Stephen
Sedley, “Asylum: Can the Judiciary Maintain its Independence?”, IARLJ, Stemming the Tide or Keeping the Balance -
the Role of the Judiciary (2002) 319, 324-325. See also
Audrey Macklin, “Truth and Consequences: Credibility Determination in
the Refugee Context” in IARLJ, The
Realities of Refugee Determination on the Eve of a New Millennium: The
Role of the Judiciary (October 1998) 134, 139-140.
31 In the common
law context see R v Secretary of
State for the Home Department; Ex parte Pierson [1998] AC 539,
591 (HL) (Lord Steyn); Wade & Forsyth, Administrative Law 9th ed (Oxford,
2004) 20-25 and see the recent statement by Collins J in R (on the Application of the Refugee Legal
Centre) v Secretary of State for the Home Department [2004] Imm
AR 142 at [12] that the court will act where the process is unfair,
even where a particular individual cannot be shown to have suffered.
32 Sepet v Secretary of State for the Home
Department [2003] 1 WLR 856; [2003] 3 All ER 304 (HL) at para
[6] per Lord Bingham (with whom Lords Steyn, Hutton and Rodger agreed)
approving Sedley J in R v
Immigration Appeal Tribunal; Ex parte Shah [1997] Imm AR 145,
152; Refugee Appeal No. 74665/03
[2005] NZAR 60 at [70] & [71] (NZRSAA).
33 Colin Harvey,
“Refugees, Asylum-Seekers, the Rule of Law and Human Rights” in David
Dyzenhaus (ed), The Unity of Public
Law (Hart, 2004) 201, 202-203, 205-206.
34 For a comment
on this issue in the context of the Nordic countries, see Robin
Lööf & Brian Gorlick, “Implementing international human
rights law on behalf of asylum-seekers and refugees: The record of the
Nordic countries” (UNHCR, New Issues in Refugee Research, Working Paper
No. 110) (November 2004) at 8.