OxMo-Vol.-3-No.-1

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Oxford Monitor of Forced Migration Vol. 3, No. 1 International Court of Justice Article 38(1)(d)) by interpreting and applying international law. Thus Australian courts should not eschew their role in determining whether a treaty is reflective of custom merely because the question is a ‘vexed’ one on which views may differ (SRYYY: [47]). Finally, the incorrect application of international criminal law principles relevant to Article 1F(a), such as the requirement that conduct be criminalised at the time it is engaged in order to constitute a ‘crime’ at international law, has the potential to fragment and undermine systemic coherence in international law as a whole (Koskenniemi 2006). Recommendations Courts and policymakers must immediately recognise the importance of ensuring that Article 1F(a) is applied in a manner consistent with its proper interpretation and direct decisionmakers and administrative tribunals accordingly. A three step approach should be followed: first, determine whether the alleged act constituted a crime at the time of commission; second, determine whether the source of substantive criminality or any available defences is custom or treaty; and third, apply that source (or an instrument codifying custom, if the former) of international criminal law norms to identify the elements of the crime or defence by which to judge whether there are serious reasons for considering whether that crime has been committed, thereby justifying exclusion of the applicant. Further, while it would be unduly burdensome to expect Ministerial delegates to continually ascertain the status of custom at various points in time while processing applications for protection visas, it would not be unreasonable to require the Department of Immigration and Citizenship to commission legal advisers to investigate the issue and provide amended advice to decision-makers through the Refugee Guidelines in Procedures and Advice Manual. 32 Conclusion This paper has criticised the approach of the Federal Court of Australia in SRYYY for applying Article 1F(a) of the Refugee Convention in a manner inconsistent with its proper meaning. Such an approach has serious implications for the integrity of the institution of asylum and the protection of persons whose exclusion is not legally justified. It also may have adverse consequences for Australia’s compliance with its international obligations and for the systemic coherence of international law. In essence, this paper is a plea for accuracy in establishing the basis for legally justified exclusions under Article 1F(a). 32 The most recent edition of the Refugee Guidelines in PAM3 was updated in March 2010: Department of Immigration and Citizenship, Refugee Law Guidelines (March 2010, issued as part of Procedures and Advice Manual 3). 41
Oxford Monitor of Forced Migration Vol. 3, No. 1 Catherine Drummond is an Australian national who holds a Bachelor of Laws and a Bachelors of Arts (Peace and Conflict Studies / International Relations) from the University of Queensland. She is presently a Judge's Associate on the Queensland Court of Appeal. She has interned with the United Nations International Criminal Tribunal for Rwanda and has undertaken research on mass atrocity crimes with the Asia-Pacific Centre for the Responsibility to Protect and the United Nations Association of Australia. She has also published on the Responsibility to Protect. References cited CASSESE, A. (2003) International Criminal Law, Oxford, Oxford University Press. __________(2002) ‘Justifications and Excuses in International Criminal Law’ in Cassase, A. and Gaeta, P. (eds) The Rome Statute of the International Criminal Court: A Commentary (Vol I), Oxford, Oxford University Press. DARCY, S. (2011) ‘Defences to International Crimes’ in Schabas, W.A. and Bernaz, N. (eds) Routledge Handbook of International Criminal Law, Oxon, Routledge. DEPARTMENT OF IMMIGRATION AND CITIZENSHIP (2010) Refugee Law Guidelines, Canberra. GAETA, P. (1999) ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’, European Journal of International Law 10(1): 172-191. GILBERT, G. (2003) ‘Current Issues in the Application of the Exclusion Clauses’ in Feller, E., Türk, V. and Nicholson, F. (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge, Cambridge University Press. GOODWIN-GILL, G.S. and J. MCADAM (2007) The Refugee in International Law, 3 rd ed, Oxford, Oxford University Press. JOHNSTON, P. and C. HARRIS (2007) ‘SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs: War Crimes and the Refugee Convention’, Melbourne Journal of International Law 8: 104-123. JOSEPH, S., J. SCHULTZ and M. CASTAN (2004) The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, Oxford, Oxford University Press. 42
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