The 1951 Refugee Convention makes no direct reference to when an asylum-seeker makes fraudulent claims, or claims made in bad faith. This article examines the doctrinal origins of bad faith in International Law and the different interpretations when applying it. By way of comparison, it looks at the contrasting opinions in New Zealand and the United Kingdom on the subject of bad faith. The article then outlines bad faith in the Australian context. It considers the jurisprudential history of the relevant bad faith provision in section 91R(3) of the Migration Act 1958. This provision sets up an evidentiary exclusion targeted at decision-makers who determine asylum claims. The article grapples with this awkwardly worded provision and presents counter arguments on the provision's interpretation and utility. This provision has proved to be controversial within Australian jurisprudence, with leading academics and legal bodies observing that it collides with fundamental protections outlined in international human rights law such as the law of refoulement. The article concludes that section 91R(3) unnecessarily complicates the processing of asylum-seekers and questions whether it would be more useful to repeal the provision. © The Author [2011]. All rights reserved.

Australia asylum-seeker Non-refoulement Bad faith

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