MJIL Symposium: The Pacific Solution Mark II: Responsibility Shifting in International Refugee Law

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

The need for international co-operation to address the challenge of refugee flows is uncontroversial in principle: it is recognised in the Preamble to the Convention relating to the Status of Refugees (‘Refugee Convention’), in regional refugee treaties and in the work of the United Nations High Commissioner for Refugees (UNHCR). However, too often states have relied on the notion of international co-operation to engage in what is more accurately understood as burden-shifting rather than burden-sharing arrangements. In my article I argue that while the Refugee Convention does not explicitly authorise nor prohibit the transfer of refugees between states party to the Convention, it imposes limits on the extent to which states may lawfully engage in responsibility sharing regimes. Drawing in particular on the High Court of Australia’s decision in M70/2011 v Minister for Immigration and Citizenship (‘M70’), I outline the content of the constraints imposed at international law, including the need for all parties to an arrangement to be Refugee Convention parties, and the obligation on a transferring state to ensure that non-refoulement will be respected, which in turn requires that the receiving state has an adjudication procedure in place to assess refugee status, that the receiving state guarantees access to that system, and that the receiving state interprets the Refugee Convention in a manner that respects the ‘true and autonomous’ meaning of the refugee definition contained in art 1A(2) of the Refugee Convention. In addition, those rights already acquired by a refugee by virtue of physical presence in the sending state (for example rights to education, religious freedom, and access to the courts) must be respected in the receiving state.

Since publication of this article, the Australian government has moved swiftly to implement the ‘disincentives … to actively discourage irregular and dangerous maritime voyages to Australia for the purposes of claiming protection or seeking asylum’ recommended by its Expert Panel in August 2012. In order to do so it was necessary to amend the Migration Act 1958 (‘Migration Act’) to remove the protections which the High Court relied upon in M70 to invalidate the declaration concerning Malaysia. In my view the amendments to the Migration Act effected by passage of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (‘Act’), and the subsequent transfer of putative refugees from Australia to Nauru, place Australia at risk of violation of the Refugee Convention. Before outlining my core concerns I make the initial observation that while there is considerable emphasis on Nauru constituting a ‘regional processing country,’ there is nothing regional about the current arrangements. They are not implemented pursuant to a wider regional agreement (in contrast for example to the Dublin Regulation in Europe), nor do they entail any reciprocity since Nauru has no refugee intake other than that resulting from implementation of the Memorandum of Understanding (‘MOU’) with Australia.

There are four key ways in which Australia is at risk of violating its international law obligations. First, even assuming that Australia can rely on the (non binding) assurances by Nauru that it will ‘not expel or return a transferee to another country where his or her life or freedom would be threatened’, it is not clear that there is an adequate system in place to determine who will enjoy such (discretionary) protection. Nauru has assured Australia that it will ‘make an assessment, or permit an assessment to be made’ of whether a person is a refugee, but since Nauru had no domestic law implementing the Refugee Convention nor any domestic procedure in place for assessing refugee status, the Minister was not able to assess the adequacy of the procedure including availability of independent review, the accessibility of any procedure, nor the extent to which Nauru adopts the correct interpretation of the refugee definition before designating Nauru a ‘regional processing country’ under the Act. Indeed, in the instrument of designation the Minister explicitly acknowledged that he had ‘chosen not to have regard to the international obligations or domestic law of Nauru’.

Secondly, the MOU makes no reference to Refugee Convention rights other than art 33, providing only that transferees ‘will be treated with dignity and respect and that relevant human rights standards are met’. However there is no guidance as to the content of those standards, and the abovementioned fact that the Minister paid no regard to the international obligations or domestic law of Nauru in designating Nauru a ‘regional processing country’ suggests that the Minister does not view international law as determinative or even relevant to these issues.

Thirdly, the MOU pertains only to the transfer and initial assessment of refugee status, but says nothing about the content of refugee status post-assessment. In other words, there is no indication let alone guarantee that those found to be refugees will be resettled or provided with a durable solution in which Refugee Convention rights are respected. On the contrary, given that the government had endorsed the ‘no advantage’ principle advocated in the Expert Panel report, there is a clear risk of indefinite and prolonged detention, under conditions which might well amount to subjection to inhuman and degrading treatment.

Finally, the protection for unaccompanied minors provided by the Immigration (Guardianship of Children) Act 1946 has been removed and the MOU provides only that ‘special arrangements will be developed and agreed … for vulnerable cases including unaccompanied minors’, without embodying any specific protections. This places Australia at risk of violating wider international human rights obligations including the Convention on the Rights of the Child.

In light of these concerns it is unsurprising that in formally designating Nauru a ‘regional processing country’ under the Migration Act, the Minister for Immigration and Citizenship stated that ‘even if the designation of Nauru to be a regional processing country is inconsistent with Australia’s international obligations, I nevertheless think that it is in the national interest’. In other words the Parliament has explicitly authorised Australia’s violation of international refugee law, and in doing so has legitimated what can only be described as a responsibility-shifting rather than responsibility-sharing regime. This is a retrograde and disappointing development in a region of the world that desperately requires leadership — not abdication of responsibility — from a well resourced country with a long and distinguished history of high quality onshore refugee status determination such as Australia.

The original article may be accessed here.