Protection of the Migrants. The case of Gerry Hagger - Essay Example

Running Head: PROTECTION VISA: THE CASE OF GERRY HAGGER Protection Visa: The case of Gerry Hagger By The 1951 United Nations Convention Relating to the Status of Refugees, which came at the heel of the 2nd World War, was drafted to protect refugees from European countries. In 1967, the geographical limitation was deleted to include protection for all kinds of refugees in the world in an amendatory instrument called the 1967 Protocol. Article 1 of the Convention as amended thus defines a refugee as “A 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 of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” Australia ratified the Convention on January 22, 1954 and the 1967 Protocol on December 13, 1973. In the case of Gerry Hagger who has been previously refused grant of protection visa by the Department of Immigration and Australian Citizenship (DIAC), the next step is to resort to an application for review by the Refugee Review Tribunal (RRT). Although Hagger has a substantial ground for alleging persecution and afford himself an Australian protection visa, there are also a significant number of factors that will weigh down against granting him such kind of visa under the Australian Migration Act of 1958 and the Migration Regulations of 1994. Protection visas are initially treated under s 36 of the Migration Act of 1958, and one of the criteria for the granting of this kind of visa is s 36 (1) (a) where the applicant is a non-Australian and he or she satisfied the Minister that Australia is obliged under the Convention to extend to him the status of refugee. The obligation to extend a person protection is determined by the definition of a refugee under Article 1 of the Convention. The determination of a person’s right to be granted a protection visa under Australian migration law does not however stop at Article 1 of the said Convention. Once such determination is made, the Migration Act of 1958 requires several qualifying factors to finally make such person worthy of a protection visa. For one, under s 36 (4) (5 ) and (6), the applicant for refugee status must have seriously sought refugee status in other countries where he or she had previously resided or entered unless he had fears that he or she will be prosecuted in those countries. Likewise the qualification is not applicable if the applicant has a well-founded fear that he will be sent back to a country where he has fear of being persecuted and the reason why he is supposed to have sought a protection status. In the case of Hagger, he had been in the countries of the Unites States, Germany and Malaysia. Hagger was a green card (permanent visa) holder in the US hence he had a valid visa while in that country. The implication is that he can freely enter, depart and return to that country. As, a permanent resident, he is entitled to protection by the US laws without actually seeking a protection visa. However, since it was in this country that Hagger feared persecution, the US is inapplicable to qualify against seeking a protection status in Australia under s 36. § 4 of the same provision impliedly exempts the US as a country to which Hagger should have sought refugee protection. In Germany, Hagger applied for protection under the Convention but he fled before the government had decided on his case for fear that his life was under extreme danger. It was strange however why he applied for a protection status in Germany when he was a German by birth. As a German national, Hagger is entitled to the protection of its laws without actually seeking a formal request for protection under the Convention. There is no reason to believe that he had lost this status as a German national considering that he is not yet a full-pledged citizen of the US as he was a mere green card holder. This implies that he has not taken the oath for US naturalization of which there is a possibility that he might relinquished his German nationality. A discussion of the existence of persecution in this country against Hagger in the following paragraphs would show that Germany might possibly be a state within the contemplation of s 36, therefore militating against the grant of an Australian protection visa to Hagger. Malaysia, whose capital is Kulala Lumpur, and where Hagger stayed for fourteen days en route to Australia, is not a signatory to the Convention nor to the amendatory 1967 Protocol, albeit Malaysia is a member-country of the United Nations. Hagger could not have applied for a refugee status under the Convention and Malaysia would have been under no obligation to extend to him a refugee status. On the other hand, Hagger could have made an attempt to make such an application under Malaysian humanitarian laws. However, his chances would have been nil considering the history of Malaysia in its treatment of refugees where many of such were not only imprisoned but subjected to infliction of physical punishment. Although s 36 (3) of the Act did not differentiate between a signatory and non-signatory country to the Convention as amended, chances are even the Australian government will not seriously consider Hagger’s inability to seek refuge with the Malaysian country a big factor against his application for refugee status in Malaysia. This provision where Australia considered itself a country of last resort where refugee protection is concerned is also reinforced by Subdivision AK of the Migration Act of 1958. Under this provision, any person who is a national of another country or has the right to enter any other country should first seek protection from those countries before seeking one from Australia. According to s 91R (1) of the Migration Act of 1958, the grounds mentioned in Article 1 of the Convention as amended are not applicable in connection with persecution unless the persecution (1) is caused by one or more of those grounds, (2) involves serious harm, and (3) involves systematic and discriminatory conduct. The grounds being referred to in this particular provision are: race, religion, nationality, membership of a particular social group or political opinion. All these elements must be present for persecution under the Convention to be applicable in Australian law. S 91R (2) of the same Act, gives six instances of serious harm to the applicant for refugee status: threat to life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens capacity to subsist; denial of access to basic services resulting in threat to capacity to subsist; denial of capacity to earn a livelihood of any kind, likewise constituting a threat to capacity to subsist. The issues in this case therefore are whether Gerry Hagger suffered persecution in both the United States and Germany and whether Australia is the country of last resort where Hagger should apply for a protection visa. Gerry Hagger is a green card holder or a permanent visa holder of the United States implying he can lawfully stay in the US although he is not a US citizen and can be lawfully engaged in gainful employment. As a matter of fact, Hagger taught, played and was famous because of his talent in the monopoly game. He represented the US in international monopoly competitions in the past. However, because of his vocal support of extreme neo-Nazi views, Hagger was systematically deprived of practicing and engaging in the sport by his unceremonious removal from the US monopoly team and prohibition from participating in inter club monopoly competitions. With loss of opportunity to work in the field of monopoly, and all his earnings gradually disappearing, Hagger will eventually suffer economic hardship because his life and work in the US had always involved the monopoly game. In addition, his life had been placed in serious jeopardy twice, once when he was pushed from behind towards a running train and second, when a car had deliberately headed for his direction with the intent to ran him over. To top it all, he seemed to be shadowed by unknown persons. The question at this point is whether all of these incidents and events would constitute persecution under the Migration Act of 1958. Recalling s 91R of the Act, three elements must co-exist for persecution to lie: the persecution must be caused by the reasons provided in the Convention like race, religion etc; the persecution involves serious harm to the person, and; the persecution constituted a systematic and discriminatory conduct. Hagger was eased out of his position from the US team and was prohibited from inter competitions in monopoly because his views offended some influential Jewish community members. It could be fairly surmised that these right wing views were also the caused why on two occasions he almost met his death. Taken as a whole, it could be said that there was a systematic movement not only to ease Hagger out from the monopoly scene but also to make him feel unsafe and eventually drive him out of the country. The events could only be described as discriminatory. The bottom line is, Hagger was persecuted within the ambit of the Convention and the Australian Migration Act of 1958. The case in Germany is however of a different matter. Hagger’s stay in Germany also exposed him to serious threat of his life by the same groups who hounded him in the US for the same reason which is his extreme neo-Nazi views. His experience where a group of hooded men accosted him in the street of Germany with a knife seriously threatened his life and the vandalistic writings on his car constituted serious physical harassment on his person. However, the incidents taken together did not constitute a systematic and discriminatory conduct but were serious criminal offenses against Hagger, a matter which should have been reported to the local gendarmes. These were isolated incidents and are not enough to constitute persecution. It could not be said that there was discrimination and the incidents are relatively too few to be characterized as systematic. This is not to say however that his life was not in danger in Germany but it could not constitute however as a persecution specifically from the Australian point of view. Moreover, Hagger has to hurdle the character test for visa applicants under s 501 of the Migration Act of 1958. Failure to pass the character test under s 501 (6) is ground for refusal of any visa, including a protection visa. Among the criteria for the test are: association with persons or groups suspected to be involved in criminal conduct; the entry of the person in the Australian jurisdiction creates a significant risk that he or she will engage in criminal activities, vilify a segment of the community, represent a danger to a sector of the community through disruptive or violent activities. Unfortunately, when Hagger entered Australia, he aligned himself with a Neo-Nazi group and joined them in desecrating a Jewish synagogue for which he was imprisoned for six months. This would reflect unfavorably to his character. First, the group to which he aligned himself with is engaged in activities that target a sector of the Australian community and harass, at least, that group, and because of his strong neo-Nazi views there is significant likelihood that he will continue to participate and take part in the anti-Jewish activities of the same group if allowed to stay in Australia. All the previously stated grounds must have factored in the refusal by DIAC of Hagger’s application for a protection visa. Although Hagger is not anymore allowed to apply for another visa under s 48A of the Act which states that in the event of a refusal of a protection visa by a non-citizen who is in the migration zone, the applicant may not make another application for any kind of visa but may apply for a review of that refusal under s 411 (C), Division 2 of the Act which states to the effect that the RRT has the power to review cases of decisions of refusal of protection visas. The good news about the RRT method of review is that is extensively uses the natural justice hearing rule which implies that there is less emphasis on the stringent technical rules as laid down under s 422B of the Act.. In this method of hearing cases, the applicants are given an opportunity to be heard and extended other procedural fairness especially when findings are specially damaging to the person’s application. At this point, Hagger should be able to convincingly recount the harrowing story of his life while in the United States and the failure of the German government to protect him while the same group of people had followed him to Germany with the intent to harm his life. Conclusion Gerry Hagger’s chances of having a previous refusal of protection visa reversed by the RRT are nil because several factors militate against his application. The most significant of these is the fact that Hagger is a German national and he has not shown satisfactory evidence that he suffered persecution in that country. The attempts against his life albeit serious do not in themselves constituted persecution within the contemplation of the Migration Act of 1958. This is because the incidents did not amount to a systematic and discriminatory conduct perpetrated by Germany or its inhabitants. Fleeing Germany and seeking for refugee status in another country like Australia is not the proper solution but a refuge to the laws and the police agencies of Germany is. Likewise, there is no need to wait for Germany’s action on the protection application of Hagger before he could avail of its protective mantle. Protection by a state is axiomatic and automatically granted to its nationals and citizens like Hagger. In addition, Hagger made the mistake of aligning himself with pro-Nazi elements who are engaged in activities against the Australian Jewish community illustrating to the Australian government that he might be a liability once the country embraces him as a refugee under the Convention. The act of Hagger in participating in the desecration of a synagogue while he still in the country by virtue of an ETA document might lead Australian immigration officials to believe that granting him a legal status to remain in the country will lead him to engage in even far serious acts against the Jewish community. What favors Hagger’s application however, is the real and harrowing experience he had in the US where he was systematically deprived of his right to earn a living and engage in activity he has expertise and talent in, in addition to the immediate threat to his life. In addition, the fact that these elements out to harm him was able to follow him even in Germany left him vulnerable even in that country, could sway the RRT in his favor despite the weakness of his case. Total Word Count=2499 References The Migration Act of 1958 The Migration Regulations 1994 United Nations Convention Relating to the Status of Refugees Read More