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Palestinian Refugee Protection in the Courts – Recent Judgements in the U.K. and Australia

Requests by Palestinian refugees for legal protection in countries outside the area of UNRWA operation continue to give rise to extensive debate in the courts over the correct interpretation of their legal status and entitlement to the benefits of the 1951 Refugee Convention. Two judgements passed by a British and an Australian court in the second half of 2002 are of special interest, as they are based on extensive examination of the various and often conflicting interpretations of Article 1D (1951 Refugee Convention), and because they were passed shortly prior and after the release of the new UNHCR interpretation.

Both Court decisions clearly contradict the UNHCR’s new interpretation in different aspects, but with similar results. While the UNHCR holds that all Palestine refugees of the wars of 1948 and 1967 living outside the area of UNRWA operation are ‘ipso facto’ entitled to protection under the 1951 Refugee Convention, both courts issued rulings which drastically reduce the size of the population entitled to such protection. In the U.K (see below, El-Ali v. Secretary of State), the Court used a very restrictive interpretation of entitlement based on the first sentence of Article 1D, while in Australia (see below, Waqb v. Minister of Immigration) – where entitlement was understood to include all 1948 Palestine refugees no longer receiving assistance or protection by the relevant UN agencies (UNRWA, UNCCP) – the same result was achieved by a very restrictive interpretation of the ‘ipso facto’ language in the second sentence of Article 1D. By thus limiting the number of Palestinian refugees entitled to protection under the 1951 Refugee Convention, both Courts appear to have been guided more by the aim to limit the scope of potential state obligations to a large and additional group of refugees than by serious concern about the most appropriate legal interpretation or the fate of the Palestinian refugees.

Interestingly enough, both Courts disagree with the UNHCR’s new interpretation regarding the circumstances, which cause the cessation of assistance or protection for Palestinian refugees and thus trigger their inclusion under the 1951 Refugee Convention (Article 1D/second sentence). Both courts hold that cessation is not brought about by the physical movement of Palestinian refugees outside the area of UNRWA operation, but by objective factors (i.e. a durable solution in accordance with the relevant UNGA resolutions; or the termination of assistance or protection functions by the relevant UN agencies). The courts’ interpretation is in line with the widely held legal opinion that subjective choices of refugees cannot trigger the application of international protection mechanisms. The Australian Federal Court, moreover, raised the urgent need for clarification of the question which UN agency is providing protection for Palestinian refugees. It thus points the finger at the major weakness inherent in the UNHCR’s new interpretation, which has avoided tackling this matter in a serious manner.
 

1. The Case of Amer Muhammad El-Ali v. The Secretary of State for the Home Department and Daraz v. The Secretary of State for the Home Department; judgement passed by the Supreme Court of Judicature Court of Appeal (Civil Division) in London on 26 July 2002 (No. 2002 EWCA Civ. 1103)

Amer El-Ali was born in Kuwait in 1977 but lived nearly all his life in Lebanon. His parents originate from a village near Tiberias that became part of Israel in 1948. He arrived in the U.K. in 1998 and produced documents showing that he was a ‘Palestine Refugee’ registered with UNRWA. He appealed to the Supreme Court of Judicature Court of Appeal (from now on: ‘Supreme Court’) following several rejections of his claim for asylum. He argued in the appeal that, “while he was in Lebanon he was able to claim protection or assistance from UNRWA, and so the Refugee Convention did not apply to him. Now that he has left Lebanon that protection or assistance has ceased, and so ‘ipso facto’ he has become entitled to the benefits of the Refugee Convention.”

Daraz is also a Palestinian refugee born in Lebanon in 1973. He arrived to the U.K. in 1998 and sought asylum, claiming to have left Lebanon because he was wanted by members of the Hizbullah. His asylum claim based on fear of persecution (Article 1A/2) was rejected, and in the appeal to the Supreme Court he joined the argument of El-Ali and claimed entitlement to the benefits of the Refugee Convention based on Article 1D.

The Supreme Court ruled that a correct interpretation of Article ID leads to the conclusion that the group of Palestinian refugees entitled to the benefits of the Refugee Convention is limited to Palestinians who – at the date of the adoption of the Convention (28 July 1951) – were registered with UNRWA and received UNRWA protection or assistance. Protection claims of Palestinian refugees registered with UNRWA at a later date must be examined individually in accordance with Article 1A/2 (well-founded fear of persecution). Since both Mr. El-Ali and Mr. Daraz are not included in the category of UNRWA refugees registered in 1951, and since they did not claim protection based on Article 1A/2, the Supreme Court dismissed their appeal. The Court’s restrictive interpretation of Article 1D was not supported by the Secretary of State and by Professor Guy Goodwin-Gill who intervened in this case on behalf of the UNHCR.

In the judgement, the Supreme Court argued that any less restrictive interpretation of Article 1D would run counter to the intentions of the European and Arab drafters of the 1951 Refugee Convention, who were interested in limiting the number of Palestinian refugees entitled to the extensive protection benefits of the Convention by means of a privileged procedure (Article 1D/2). “So great a parcel of rights would not likely be conferred, I think, unless the class of its recipients were clear and certain, and this is given by the interpretations I favour […] I consider that the approach I have put forward best reflects the Convention’s original and historic purposes and if, like the European Convention on Human Rights, it should be regarded as a living instrument, then this approach also represents a rational and human response to today’s Palestinian asylum seekers.”

The Supreme court also decided not to decide about how a distinction between refugee protection and refugee assistance, and the role of UNRWA and UNCCP, would possible effect the current legal status of Palestinian refugees. Justice Law argued that this matter was beyond the scope of the Court, especially in light of the ongoing academic controversy in this matter. “I should say that something was sought to be made in the course of argument to the difference between ‘protection’ and ‘assistance;’ but it seems to me beyond any argument that those persons registered with or receiving assistance from UNRWA in the territories of its operation on 28 July 1951, even if they were not the beneficiaries of any other distinct protection, must have fallen within the first sentence of ID.”


2. The Case of Waqb v. Minister for Immigration and Multicultural Affairs; judgement passed by the Federal Court of Australia, Sydney (heard in Perth) on 8 November 2002 (New South Wales District Registry W516 OF 2001)

The Federal Court dealt with an appeal by the Minister for Immigration and Multicultural Affairs against earlier decisions of a court and the Refugee Review Tribunal to set aside the decision of the Minister, who had refused to grant a protection visa to Waqb, a stateless Palestinian refugee. The Tribunal had ruled that the 1951 Refugee Convention had no application to the case of Mr. Waqb and that he was entitled to a protection visa under Australia’s Migration Act 1958.

The Minister argued in the appeal that the Refugee Review Tribunal’s decision involved an error of law, i.e. an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal: “It found that the respondent and his family were outside the geographical area where the UNRWA operates and is not presently receiving protection or assistance of that agency and that he had not received practical assistance since 1975. It considered that on the basis of this finding article 1D of the Convention had no application. In so doing, the Tribunal has misunderstood the role and function of article 1D and, as a result, the ambit of Australia’s protection obligations under the Convention.”

The Federal Court conducted an extensive review of available factual information pertaining to Palestinian refugees and expert opinion about applicable interpretations of the 1951 Convention, Article 1D. The Court ruled that the Tribunal had made at least one finding of fact that was incorrect, i.e. that UNRWA was the United Nations Agency which provided both protection and assistance to Palestinian refugees. The Court also ruled that the matter should be remitted back to the Tribunal for further consideration.

The Federal Court Judgement also includes interpretations of Article 1D as favored by the Judges Hill (judgement, paragraphs 68-69), Moore (paragraphs 95-108) and Tamberlin (paragraphs 162-175):

• The Article (‘persons receiving at present’) refers to a class of persons receiving assistance or protection. However, the class of persons was not fixed as those who were actually living when the Convention became operative. The words do no more than describe a class or community of persons. So long as such a class of persons continued to exist the provisions of Article 1D would continue to have operation.
• The terms ‘protection or assistance’ in the Article should be construed as it reads, namely that assistance and protection are alternatives. All three judges agreed that it was clear that those who framed the Convention intended the reference to protection to be a reference to UNCCP.
• The judges disagreed about what exactly was the key question for further review by the Refugee Review Tribunal: the question of whether the UNCCP actually provided protection at the time of the Convention (Judge Hill), or the question of whether protection has ceased in the sense that it is no longer provided neither by UNRWA, nor by UNCCP or any other UN agency (Judge Moore and Jugde Tamberlin). All three judges agreed, however, that these questions were not a matter upon which the Court could rule in proceedings for judicial review.
• There was consensus in the Court that the question posed by the second paragraph (‘protection or assistance ceased’) is whether the relevant protection or assistance ceased in respect of the class of persons referred to in the first paragraph, not whether it ceased in respect of a particular individual.
• All three judges agreed that the second paragraph (if protection or assistance cease such persons are ‘ipso facto’ entitled to ‘benefits of the Convention’) should not be interpreted as conveying Convention Refugee status to 1948 Palestinian refugees. It the words of Judge Hill, it should rather “mean that the Palestinian may then, for the first time, fall within the Convention and can then be the subject of consideration or screening to test whether he or she is a refugee. It is not that the person is deemed to be a refugee. The benefits of the Convention are those benefits, such as the non-expulsion provisions of Article 32 and the non-refoulement provisions of Article 33. But those benefits are available only to those persons who are refugees. They are not available to anyone else.”

The full cases are available on the BADIL website: www.badil.org/Protection/Documents/Protect_Docs.htm