In an interview with Guardian Australia, Home Affairs Minister Peter Dutton has voiced his opinion that ‘like-minded nations’ should consider a revision of the 1951 Convention Relating to the Status of Refugees (“the Convention”). The objective of such a revision would be (though he has not explicitly said so) to degrade the non-refoulement obligation, which provides that States cannot expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. It is the cornerstone to refugee protection and the subject of the vast majority of refugee-related litigation globally.
In the decades that followed the inception of the Convention, and with the fading memories of wartime displacement and the associated desire to provide shelter to those fleeing ideological adversaries, States began (albeit gradually) to restrict access to their territories as spontaneous arrivals of African and Asian refugees replaced the practice of inviting European Jews as part of a quota system. As several prominent scholars have noted, this new phenomenon forced receiving states to reconsider their previous generosity. Chief among restriction policies was the dichotomy created by States between asylum seekers and refugees. Many States combatted spontaneous arrivals by adopting the position that Convention protections, in particular the principle of non-refoulement, did not extend to asylum seekers. This position was (and continues to be) problematic for several reasons. Firstly, it ignored the fact that refugee status is declaratory in nature, as the factual existence of persecution is not altered by a State’s recognition of such. This presumption is strenuously contended by the United Nations High Commissioner for Refugees (“UNHCR”) (among other actors) as stated in the organisation’s 2015 report Onward Movement Of Asylum-seekers And Refugees:
“A person is a refugee within the meaning of the 1951 Convention, or other applicable regional instruments, as soon as she or he fulfils the criteria in the definition. This necessarily occurs prior to the time at which his or her refugee status is formally determined. Recognition of refugee status does not therefore make a person a refugee, but declares him or her to be one.”
Secondly, this presumption allowed criminal sanctions to be leveled against asylum seekers for ‘illegal entry’. This trend in domestic refugee law and policy can be seen in Australia’s incremental establishment of an asylum regime designed to refute the existence of its own jurisdiction, both over asylum seekers and over territories in which it has established offshore detention centres, with the specific objective to avoid triggering obligations associated with the principle of non-refoulement.
Importantly, these legislative developments have often garnered stunning support from the judiciary. In 2002, the High Court of Australia held that the term ‘asylum’ does not appear in the main body of the text of the Convention and consequently, obligations owed to refugees are not owed to asylum seekers. In fact, a number of decisions rendered by Australia’s highest court support the notion that Convention rights do not extend to asylum seekers or to any person outside the territorial jurisdiction of Australia.
Australia ratified the Convention without reservation in 1954 and ratified the 1967 Protocol without reservation in 1973. Australia is also party to the 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed in 1985, ratified in 1989) and its Optional Protocol (signed in 2009, ratified in 2017), which precludes refoulement of any person to a territory where they may be the victim of torture or degrading and inhuman treatment, included those who may be excluded under Article 1F of the Convention. Despite the ratification of core international human rights instruments, Australia has sought to disassociate the entirety of its refugee framework from its obligations under international law through its unilateral actions concerning the parameters and indeed the definition of non-refoulement, its scope, and its status in international law, aided in part by some extremely conservative judicial interpretations of the scope and content of the principle; in particular, that it does not extend to asylum seekers or extraterritorial actions of the State.
In the 2000 case of Minister for Immigration and Multicultural Affairs v Haji Ibrahim, the High Court of Australia held that:
“The definition [of non-refoulement] does not encompass those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention.”
On the contrary, though natural disasters and poor economic conditions are not legitimate causes for the conferral of refugee status, as the condition of persecution on Convention grounds are not fulfilled, generalised violence and armed conflict, whether international or non-international in nature, are at the very core of the Convention’s existence. The rationale in Haji Ibrahim failed to take into account that persecution of populations can occur (and indeed, frequently does) on immense scales during armed conflicts rather than on an individualised basis. One only has to consider the sarin gas attacks in Ghouta and the aerial bombardment of Homs in Syria, the extensive use of drone warfare in Yemen, and the terrorist activities of Boko Haram in northern Nigeria, to recognise the deeply flawed nature of that reasoning.
In the 2015 case of CPCF v Minister for Immigration and Border Protection, the High Court of Australia held that:
“Judicial authority in Australia… suggests that a state’s obligations under the Convention arise only with respect to persons who are within that state’s territory… Whatever the true effect of the Convention may be, the terms of the Migration Act are clear.
The power conferred by s 72(4) [of Maritime Powers Act 2013 (Cth) authorised maritime officer to detain persons for the purpose of taking persons outside Australia] is not subject to observance of Art 33(1) of the Convention (the prohibition of refoulement).”
The Court held that Australian courts are bound to apply Australian statute law “even if that law should violate a rule of international law.” It should be noted (with great concern) that Australian courts have (and indeed continue to) whole-heartedly embrace and uphold highly contentious and much-maligned decisions of the United States Supreme Court and the United Kingdom House of Lords excluding refoulement from extraterritorial jurisdiction. The High Court of Australia has cited the United States Supreme Court decision in Sale v. Haitian Centers Council in which the Court found that nothing in Article 33 of the Convention limited the President’s power to order the Coast Guard to repatriate undocumented aliens intercepted on the high seas. The Inter-American Commission of Human Rights held that the decision of the United States’ government had breached the applicants’ right to life, liberty and security of their persons as well as the right to asylum protected by article XXVII of the American Declaration of the Rights and Duties of Man. The Commission also found the United States to be in breach of Article 33(1) of the Convention. This view was shared by Blackmun J in his evisceration of the majority’s reasoning in his dissent in Sale. The High Court of Australia has also repeatedly cited the highly contentious United Kingdom case of R (European Roma Rights Centre) v Immigration Officer at Prague Airport, in which the House of Lords found (also incidentally citing the decisions in Sale, as well as two Australian decisions that relied on Sale) that the applicants were refused leave to enter the UK by UK immigration authorities operating in Prague Airport, without an examination on the merits of their asylum claims. The House of Lord held that:
“[t]he functions performed by the immigration officers at Prague [airport], even though they were formally treated as consular officials, could [not] possibly be said to be an exercise of jurisdiction in any relevant sense over non-UK nationals such as the appellants.”
Despite extensive evidence that the principle of non-refoulement extends to extraterritorial exercises of a State’s authority (evidence which the House of Lords itself quoted in the decision) the Court concluded:
“There would appear to be general acceptance of the principle that a person who leaves the state of his nationality and applies to the authorities of another state for asylum, whether at the frontier of the second state or from within it, should not be rejected or returned to the first state without appropriate enquiry into the persecution of which he claims to have a well-founded fear. But that principle, even if one of customary international law, cannot avail the appellants, who have not left the Czech Republic nor presented themselves, save in a highly metaphorical sense, at the frontier of the United Kingdom.”
In 2014, the Australian Government passed amending legislation removing all references to the Convention from the Migration Act 1958. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 amended section 36(2)(a) of the Migration Act 1958 to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a “refugee”. The explanatory memorandum for the amending legislation provides that references to the Convention and 1967 Protocol were omitted “in order to give effect to the new statutory framework relating to refugees … which articulates Australia’s interpretation of its protection obligations under the Refugee Convention”. The new statutory framework – the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the RALC Act) – inserted section 197C into the Migration Act which provided that “Australia’s non-refoulement obligations [are] irrelevant to [the] removal of unlawful non-citizens under section 198.”
There is no serious dispute among scholars, international organisations, and non-governmental organisations, that the principle of non-refoulement has acquired the status of customary international law. Equally, there is no serious dispute that the scope and content of a State’s obligation to observe the principle of non-refoulement extends to the individual beneficiary of refugee status. There are however, some jurisdictions (albeit few) in which the principle has been deemed not to extend to those seeking asylum, and, ipso facto, that refugee status is not declaratory in nature. One such jurisdiction is Australia. However, despite the cultivated position of the Australian Government on the nature and scope of the non-refoulement principle (aided by the weak conclusion of the High Court of Australia) that, customary or not, international law has no effect in Australia if it is not supported by domestic legislation, does not and cannot extinguish the fact that non-refoulement is an international obligation of all States, the violation of which is a breach of international law. Any unilateral assertion by Australia or any other State (or indeed by a Minister) that it does not consider a norm of international law to have any domestic effect has no bearing on the existence in fact of that norm, nor of the legitimacy of that position. Accordingly, Australia cannot employ creative interpretation of the scope of the non-refoulement principle to evade international obligations, nor can it employ misinterpretations of the most fundamental precepts of the doctrine of jurisdiction, to avoid liability for sustained violations of its international obligations.
Sophie Capicchiano Young is an Australian lawyer, researcher and PhD candidate based in Geneva.