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MJIL Symposium: A Response to Michelle Foster by Susan Kneebone

[Susan Kneebone is a Professor at Monash University] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. In her article Associate Professor Michelle Foster argues that there are limits imposed by the Refugee Convention and international law to the circumstances in which states may lawfully engage in transfer...

MJIL Symposium: A Response to Michelle Foster by Mary Crock

[Mary Crock is Professor of Public Law at the University of Sydney] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. Although Australia identifies as a member of the United Nation’s ‘Western European and Others’ Group (‘WEOG’), it has now enacted laws that place it much more comfortably as an Asian nation. Unlike the WEOG countries, few Asian nations are party to the Refugee Convention (‘Convention’), or to any of the major human rights conventions other than the Convention on the Rights of the Child. Most countries in this region understand and (generally) conform with the non-refoulement obligation enshrined in s 33 of the Convention, but they will not entertain the notion that refugees on their territories enjoy any economic or social rights. The presence of refugees is tolerated at best. At worst they are treated as ‘simple’ illegal migrants and subjected to detention, harassment and discrimination. Relying on the recommendations of a committee that notably did not include anyone with legal expertise, the Labor government has now moved to create a regime that Associate Professor Foster demonstrates is decidedly un-WEOG. It is squarely at odds with all but the most basic tenets of refugee and human rights law. Non-refoulement is the only principle of refugee law acknowledged in express terms. It is a regime that reifies the people in respect of whom the non-refoulement obligation is owed by denying in language that asylum seekers have any rights or agency in the protection process. The protection of affected refugees has become a privilege to be granted at the absolute (non-reviewable and non-compellable) discretion of the Minister for Immigration.

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.