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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Australia/Nauru: High Court Rules Offshore Detention of Asylum Seekers Is Lawful

(Feb. 5, 2016) On February 3, 2016, the High Court of Australia, Australia’s highest court, held in a 6-1 decision that the government is legally able to participate in the detention of asylum seekers in the Pacific island country of Nauru; this means that a number of people who were brought to Australia to receive medical treatment can now be sent back to Nauru to have their claims processed. (Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, Australasian Legal Information Institute database.)

Background

Under Australian law and policy, boats carrying asylum seekers trying to enter Australian territory may be turned back at sea, and people who do arrive without a visa are categorized as “unauthorised maritime arrivals” and transported to “regional processing countries.”  (Migration Act 1958 (Cth), ss 4(5), 5AA, & 198AD, ComLaw website; Operation Sovereign Borders, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (DIBP) (last visited Feb. 4, 2016).)  Pursuant to agreements signed with Nauru and Papua New Guinea (PNG), regional processing centers have been established on Nauru and Manus Island, PNG.  (Elibritt Karlsen, Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to the Statistics, AUSTRALIAN PARLIAMENTARY LIBRARY (Oct. 12, 2015); Instrument of Designation of the Republic of Nauru as a Regional Processing Country Under Subsection 198AB(1) of the Migration Act 1958 (Sept. 2012), ComLaw website; Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country Under Subsection 198AB(1) of the Migration Act 1958 (Oct. 2012), ComLaw website.)

Asylum seekers processed in the two countries are not able to receive visas to settle in Australia.  (See Illegal Maritime Arrivals,  DIBP (last visited Feb. 4, 2016).)  Instead, if they are found to be refugees, the agreements with Nauru and PNG provide for resettlement in those countries.  A further agreement with Cambodia means that refugees can also be voluntarily resettled in that country.  (Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (Aug. 29, 2012), DEPARTMENT OF FOREIGN AFFAIRS (DFAT); Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues (Aug. 6, 2013), DFAT; Regional Resettlement Arrangement Between Australia and Papua New Guinea (July 19, 2013), DFAT; Memorandum of Understanding Between the Government of Cambodia and the Government of Australia, Relating to the Settlement of Refugees in Cambodia (Sept. 26, 2014), DFAT.)

The goals of Australia’s asylum seeker policies include border security and deterring the actions of smugglers who transport people by boat from transit countries, such as Indonesia and Malaysia, often in unsafe situations that have resulted in numerous deaths at sea.  (Janet Phillips, A Comparison of Coalition and Labor Government Asylum Policies in Australia Since 2001, AUSTRALIAN PARLIAMENTARY LIBRARY (Feb. 28, 2014); Press Release, Peter Dutton MP, Minister – 18 Months of OSB Delivers Stronger Borders (Mar. 18, 2015).)

The conditions at the Nauru and PNG facilities, the impact of detention on children, as well as the policy of sending asylum seekers to third countries for processing, have been criticized by refugee advocates, human rights organizations, and the UNHCR.  (See, e.g., Offshore Processing: Conditions, KALDOR CENTRE FOR INTERNATIONAL REFUGEE LAW (Apr. 7, 2015); Australian Human Rights Commission, Human Rights Issues Raised by the Transfer of Asylum Seekers to Third Countries (2012); Oliver Laughland, UN Refugee Agency Condemns Australia’s Offshore Detention Regime, GUARDIAN (Nov. 26, 2013).)

High Court Decision

The case determined by the High Court was brought by a Bangladeshi woman who had been on a boat that was intercepted by Australian officers in October 2013. She was taken to Christmas Island and then subsequently detained in Nauru until August 2014, when Australian officers brought her to Australia where she later gave birth to her daughter. As she no longer required medical attention, she was liable to be returned to Nauru. (Elizabeth Byrne & Stephanie Anderson, High Court Throws Out Challenge to Nauru Offshore Detention; Malcom Turnbull Vows People Smugglers Will Not Prevail, ABC NEWS (Feb. 3, 2016).) She challenged her removal from Australia, seeking a declaration that the Commonwealth government’s conduct with respect to her detention was unlawful as it was not authorized by any valid law. (Press Release, High Court of Australia, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, High Court of Australia website (Feb. 3, 2016).)

In June 2015, after the proceedings in the High Court had been filed by the plaintiff, the Australian Parliament passed amending legislation that included a provision specifically allowing the government to pay for and participate in matters related to the detention of persons held in regional processing countries. The new provision was given retroactive effect to August 18, 2012. (Migration Act 1958 (Cth), s 198AHA, inserted by the Migration Amendment (Regional Processing Arrangements) Act 2015, ComLaw website.)  The Court held that this provision authorized the government’s participation in the plaintiff’s detention and therefore that the plaintiff was not entitled to the declaration she sought.  It stated that the conduct of the government in signing the agreement with Nauru was authorized by section 61 of the Australian Constitution and that its conduct in giving effect to that agreement was authorized by a valid law. (Press Release, High Court of Australia, supra.)  Section 61 of the Constitution relates to the executive power of the Commonwealth government.  (Commonwealth of Australia Constitution Act, s 61, ComLaw website.)

Impact of the Decision

There are currently 267 asylum seekers in Australia who could be moved to Nauru following the High Court’s ruling. This includes more than 30 babies who were born in Australia to asylum seeking mothers.  (Daniel Hurst & Ben Doherty, Turnbull and Dutton Unmoved by Calls to Spare 267 Asylum Seekers from Deportation to Nauru, GUARDIAN (Feb. 3, 2016).)  Prior to the Court issuing its decision, the Minister for Immigration and Border Protection, Peter Dutton, had signaled his intention to send a group of 160 adults, 37 babies, and 54 children back to Nauru.  (Byrne & Anderson, supra.) The Minister stated after the decision that each case would be assessed individually and that he was “not going to send children back into harm’s way.”  (Hurst & Doherty, supra.)

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Thailand: First Inheritance Tax in Decades Comes into Force

(Feb. 5, 2016) On February 1, 2016, an inheritance tax came into effect in Thailand for the first time in 72 years. The purpose of the law is to increase the tax base to generate revenue. The government has announced it expects to reap the equivalent of US$28 to $56 million from the new tax each year, with the ultimate goal of increasing social equality by collecting funds from heirs of the wealthy to “develop the country and upgrade the living of underprivileged people.” (Thailand’s 1st Inheritance Tax in Decades Enters into Effect, KYODO WORLD SERVICE (Feb.1, 2016), Open Source Center online subscription database, Doc. No. JPR2016020157595259.)

The new tax is imposed on inheritances that are over 100 million baht (about US$2.8 million) in value. Lineal descendants and ascendants will have to pay 5% of what they inherit, while other heirs will be assessed 10%. (Id.)

Background

The plan to adopt an inheritance tax was announced in November 2014. At that time, the Prime Minister of Thailand, Prayuth Chanocha, announced a new economic policy, including the introduction of both property and inheritance taxes, when speaking to the National Legislative Assembly. (Don Sornumpol, Inheritance Tax in Thailand (Nov. 12, 2014), SIAM LEGAL.)

The Thai Official Gazette published the Inheritance Tax Act and Gift Tax Regulations on August 5, 2015. The legislation included an exemption from inheritance tax when the beneficiary is a spouse or a charitable organization. The gift tax is imposed on gifts other than those from parents, spouses, or children that are worth more than THB10 million (about US$279,000) in a single year; for gifts from family members, the tax is not imposed unless the value is twice that amount. (Rachel Saw, Thailand: Inheritance and Gift Taxes – Regulations Published, TAX NEWS SERVICE (Aug. 19, 2015), International Bureau Of Fiscal Documentation  online subscription database.)

Reaction to the Law

According to Nonarit Bisonyabut of the Thailand Development Research Institute Foundation, the new law is mainly a symbolic move, as the current military government tries to establish itself as attempting to eliminate inequality in the country. Bisonyabut noted that fewer than 10,000 individuals are likely to feel any impact from the law and stated, “[t]he law will mostly distress (members of) the upper middle-class who does [sic] not have knowledge or financial planners to look after their assets like the billionaire families do.” (Thailand’s 1st Inheritance Tax in Decades Enters into Effect, supra.)

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Austria: Newly Proposed Measures on Asylum and Refugees

(Feb. 5, 2016) On January 20, 2016, the Austrian Federation and the Austrian states, as well as the municipalities and cities, came to an understanding on an upper limit of 127,500 refugees that will be allowed to apply for asylum in Austria over the course of the next four years. If implemented into binding legislation, the agreement would decrease the number gradually each year.  Additional measures would include stricter enforcement of entry checks at the borders and stricter repatriation policies for denied asylum applicants.  (Republik Österreich [Republic of Austria], Asylgipfel am 20. Jänner 2016, Gemeinsame Vorgangsweise von Bund, Ländern, Städten und Gemeinden [Asylum Summit on January 20, 2016, Joint Approach of the Federation, States, Cities, and Municipalities], Federal Ministry of Science, Research, and Economics website (Jan. 20, 2016).)

In addition, the Austrian Parliament is debating changes to the current legislative framework on asylum and refugees. The proposed amendment would provide refugees who are granted asylum a time-restricted residence permit of three years, with the option of an unlimited residence permit only after that initial period.  (Regierungsvorlage, Bundesgesetz, mit dem das Asylgesetz 2005, das Fremdenpolizeigesetz 2005 und das BFA-Verfahrensgesetz geändert werden [Government Bill, Federal Act that Amends the Asylum Act 2005, the Aliens Police Act 2005, and the Federal Office for Immigration and Asylum Procedure Act], art. 1 nos. 4 & 5, Austrian Parliament website.) Furthermore, family reunification for refugees awarded subsidiary protection would only be possible after a waiting period of three years, instead of the current one year.  (Id. art. 1 no. 9.)

If the circumstances for which asylum was granted have ceased to exist after the three years, proceedings to withdraw the asylum status will begin. In order to adequately evaluate the situation in the countries of origin, the draft act mandates an annual assessment of the situation in the primary countries from which refugees originate.  (Id. art. 1 no. 5.)  All amendments, if enacted, would have retroactive effect for applications filed after November 15, 2015.  (Id. art. 1 no. 18.)

Background

According to the monthly statistics of the Federal Ministry of the Interior, Austria received 81,127 asylum applications between January and November 2015, with 11,931 in November alone. Most of the applicants in November came from Afghanistan (5,395 first-time applicants), Syria (2,877), and Iraq (1,444).  The number of asylum applications has more than tripled since 2014 – an increase of 240%.  (Bundesministerium für Inneres [Federal Ministry of the Interior], Vorläufige Asylstatistik November 2015 [Preliminary Asylum Statistic November 2015], Federal Ministry of the Interior website (Nov. 2015), at 3 & 6.)

Under current asylum legislation, refugees whose asylum applications are approved receive an unlimited residence permit. (Bundesgesetz über die Gewährung von Asyl [Asylgesetz 2005] [AsylG 2005] [Federal Act Concerning the Granting of Asylum] [Asylum Act 2005] [AsylG 2005]], BUNDESGESETZBLATT [BGBl.] I No. 100/2005, § 2, ¶ 1, no. 15, REICHSINFORMATIONSSYSTEM.) The proposed change is in line with the Qualification Directive of the European Union, which requires residence permits granted to refugees to be valid for at least three years and to be renewable.  (Directive 2011/95/EU of the EU Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted, 2011 O.J. (L 337) 9.) Other EU Member States, such as Germany, have similar restrictions in place. (Residence Act [Aufenthaltsgesetz [AufenthG]] (Feb. 25, 2008, current to Sept. 2013), BGBl. I at 162, as amended, § 26 ¶ 1 sentence 3, GERMAN LAWS ONLINE (unofficial English translation).)

Potential Legal Issues with an Upper Limit

It is unclear whether Austria as a Member State of the EU can unilaterally set an upper limit on the number of asylum applications it accepts. The President of the European Court of Justice, Koen Lenaerts, recently pointed out in an interview that “if an individual is entitled to political asylum, he or she has the right under EU legislation to be acknowledged as a refugee.  This is hard to reconcile with a number or an upper limit.”  (Marion Trimborn, Lenaerts: Asylrecht schwer vereinbar mit Obergrenze [Lenaerts: Asylum Legislation Difficult to Reconcile with an Upper Limit], NEUE OSNABRÜCKER ZEITUNG (Jan. 18, 2016).) The Austrian government has commissioned a legal opinion on the question of whether the proposed agreement would conform to international and European law.  (Press Release, Bundeskanzleramt [Federal Chancellery], Bundeskanzleramt: Rechtsgutachten heute in Auftrag gegeben [Federal Chancellery: Legal Opinion Commissioned Today], Federal Chancellery website (Jan. 25, 2016).)

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Belgium: Court Rules Tax Haven Requirements Constitutional

(Feb. 4, 2016) Belgium’s Constitutional Court issued a decision on January 21, 2016, on the question of whether tax havens are unconstitutional. The decision, No. 11/2016, was in response to a request for a preliminary ruling sent by a lower court in Antwerp. The request asked whether the rules prohibiting tax deductibility and imposing reporting requirements payments by Belgian taxpayers to tax havens violate the constitutional principles of non-discrimination and equal treatment. (Frank Mortier, Belgium: Constitutional Court: Reporting Rules on Payments to Tax Havens Deemed Constitutional, TAX NEWS SERVICE (Jan. 25, 2016), International Bureau of Fiscal Documentation online subscription database.)

Background

The case is based on a payment from a Belgian company to a company in the British Virgin Islands; the payment was made through a Lithuanian bank. The British Virgin Islands are considered to be a tax haven, but the Belgian business did not report the payment, as legally required. The tax officials rejected the deduction of the payment as a company expense under Belgian tax law. (Id.; for a list of tax havens, see EU Releases World Tax Havens Blacklist, EU BUSINESS (June 18, 2015).) Under a December 23, 2009, law, from January 1, 2010, Belgian taxpayers have been required to report on their tax returns payments of €100,000 (about US$108,000) or more per year to institutions in jurisdictions identified as tax havens. (New Rules in Belgian Income Tax Law for Tax Haven Payments, TIBERGHIEN.COM (last visited Feb.1, 2016); Code des Impots sur les Revenus [Income Tax Law] (Apr. 10, 1992, as in force Jan. 1, 2013) COMPTA-EXCELLENT.)

The taxpayer company argued that the deduction should be allowed, because the transaction was a real one, involving actual services received, and was thus not in fact an instance of tax evasion. The matter was referred by the lower court to the Constitutional Court, to decide whether or not the tax provisions in question (requiring reporting and not permitting deductions) are in violation of the nondiscrimination requirements. (Mortier, supra.)

Decision by the Court

The Court determined that not reporting payments to entities in tax haven jurisdictions was a sufficient reason for the authorities to disallow a deduction. Its judgment stated that the reporting obligation in respect of payments to tax havens is a requirement whether the transaction was a real one or a sham. The law and the way it was used in the case at hand, the Court ruled, did not violate the equal treatment provisions of the Belgian Constitution. (Arrêt n° 11/2016 du 21 janvier 2016 [Judgment No. 11 of Jan. 21, 2016], Constitutional Court website; La Constitution Belge (as revised through Jan. 6, 2014), Belgian Senate website.)

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Sweden: Supreme Administrative Court Rules Trade in Bitcoins Not Subject to VAT

(Feb. 4, 2016) On February 2, 2016, the Swedish Supreme Administrative Court issued a ruling that trade in Bitcoins is not subject to value-added tax (VAT). (Högsta förvaltningsdomstolens dom [Supreme Administrative Court’s Judgment] (SAC Judgment), Nr. 7101-13 (Feb. 2, 2016).)

The judgment was based on a case in which the Swedish Tax Authority had appealed a preliminary decision made by the Swedish Revenue Law Commission (Skatterättsnämnden) that the sale of Bitcoins by an individual would be exempt from VAT. (Id.)

The Swedish Supreme Administrative Court had first asked the European Court of Justice (ECJ) to give a preliminary judgment on the matter. (Elin Hofverberg, Court of Justice of the European Union/Sweden: Purchase and Sale of Bitcoins Not Subject to VAT, GLOBAL LEGAL MONITOR (Nov. 5, 2015).) The ECJ replied and found that the sale and purchase of Bitcoins should be considered a service exempted from VAT. (Id.; Case C-264/14, Skatteverket v. David Hedqvist, 2015 (ECJ Preliminary Ruling) INFOCURIA – CASE-LAW OF THE COURT OF JUSTICE (Oct. 22, 2015).)

Citing the ECJ preliminary ruling, the Swedish Supreme Administrative Court upheld the original preliminary decision made by the Swedish Revenue Law Commission in which it had determined that the sale and purchase of Bitcoins would be exempt from VAT. (SAC Judgment, supra.)

 

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