MJIL Symposium: A Response to Mary Crock and Susan Kneebone by Michelle Foster

by Michelle Foster

[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.

Both Professor Crock and Professor Kneebone, in their respective contributions, raise interesting and important questions about state responsibility in the context of burden sharing/shifting schemes.  Questions surrounding responsibility are vividly raised in the current scheme of transfer of asylum seekers from Australia to Nauru given that the Australian government is determined to maintain the position that once transferred, asylum seekers will be the responsibility of Nauru alone.  This position has been said by both the Australian and Nauruan governments to be supported by the recent passage of the Refugees Convention Act 2012 (Nauru)- an Act that for the first time in Nauruan law establishes a system of refugee status determination, including merits and judicial review.  Notwithstanding this, there is reason to believe, as does Crock, that ‘the entire scheme is a paper façade for a system that will be run by Australians and for Australia’.  The very fact that the Nauruan Immigration Regulations 2000 now recognize a special visa category entitled the ‘Australian Regional Processing’ visa supports the notion that at the very least the Nauruan government understands that it is dealing with an Australian problem.  Further, while the Refugees Convention Act 2012 is an important step in establishing a domestic system of RSD in Nauru, as the UN High Commissioner for Refugees, Antonio, Guterres, has noted recently, there is no ‘experience or expertise to undertake the tasks of processing and protecting refugees’ in Nauru.  Given the complexity of modern refugee status determination, including the hundreds of high level appellate decisions in Australia alone elucidating the key elements of the refugee definition, it is implausible to believe that Nauru- a country with a population of 9,300 people – would have the resources to make first level determinations of refugee status or to populate the new refugee status review tribunal without considerable assistance from Australia.

As Professor Kneebone rightly observes, under the principles of state responsibility, states can be jointly and severally responsible for harm.  In the present context this harm may take the form of refoulement if refugees are returned to a risk of persecution due to an inadequate status determination procedure including lack of legal representation, as well as the harm suffered by asylum seekers awaiting status determination and, subsequent to recognition as refugees, resettlement in Australia or elsewhere.

Further, Professor Kneebone notes that responsibility could also be considered at the national level, discussing specifically the duty of care owed by detaining authorities.  In this regard it is also worth noting that while the Australian government has attempted to shield the transfer to and treatment of asylum seekers in Nauru from judicial scrutiny by Australian courts by amending s 198A of the Migration Act, the High Court of Australia has displayed its willingness to scrutinize the substance- not merely form- of executive action.  In M61, the High Court rejected the Minister’s characterization of the refugee status determination system established in Christmas Island as ‘non-statutory’ and outside the operation of Australian domestic law, finding instead that the system was subject to judicial review by Australian federal courts and was required to be operated according to the rules of procedural fairness and in compliance with Australian law.  While asylum seekers have now been removed to a foreign territory- as opposed merely to an ‘excised’ territory- there may nonetheless be interesting questions around the scope of the High Court to review Australia’s actions on Nauru.

In short, Professor Crock and Professor Kneebone have raised some important questions about Australia’s responsibility- both under international and domestic law- that will continue to be debated as Australia’s policies of burden shifting continue to evolve.


MJIL Symposium: A Response to Michelle Foster by Susan Kneebone

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 arrangements for asylum seekers, euphemistically known as ‘responsibility sharing’. In that and an earlier article,[1] to which French CJ in the High Court in Plaintiff M70 referred with approval,[2] Associate Professor Foster outlined the content of the rights to which both states who engage in ‘responsibility sharing’ must adhere. She said:

the better analysis is that the transferring state must at least consider … rights acquired by the refugee (whether or not status has yet been determined) by virtue of mere physical presence which includes non-discrimination, religious freedom, rights relating to property, access to the courts, rights regarding rationing, the right to elementary education, non-penalisation for illegal entry, freedom from constraints on movement … as well as non-refoulement.[3]

As Associate Professor Foster implies in her updated commentary of her recent article, there are few states within the region which can, or are willing to, provide these rights, in order to satisfy these standards. Associate Professor Foster explains that the new Subdivision on Regional Processing in the Migration Act makes it clear that in order to enter into a cooperative arrangement with another country in the region, Australia does not expect that the other country will adhere to the full set of rights in the Refugee Convention. She observes that Australia has thus ‘legitimated what can only be described as a responsibility-shifting rather than responsibility-sharing regime.’

In my opinion it is possible to push that conclusion and its implications further by reference to broad principles of state responsibility under international law, which have been used recently in other forced migration contexts. For example, in Rantsev v Cyprus and Russia, it was decided that there had been breaches of obligations by both Cyprus and Russia under art 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that related to the trafficking and death of the Applicant’s daughter. Under art 12 of the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts there is a breach of an international obligation ‘when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character’. The current evidence about the conditions in which asylum seekers are held on Nauru, including delays in establishing processing, and lack of information about ‘durable solutions’, shows that the Australian government, with the apparent acquiescence of Nauru, is creating an atmosphere of extreme uncertainty and stress, leading to incidents of self-harm and mental distress. Could this be regarded as ‘inhuman and degrading’ treatment, or even torture? Further, the principles of state responsibility establish that states can be jointly and severally responsible for harm committed under their ‘watch’. If responsibility sharing in this sense applies, might not states such as Nauru to consider their responsibility as states carefully before entering into bilateral arrangements with Australia?

Interestingly, these principles of state responsibility are recognised in the Expert Panel Report. As Associate Professor Foster correctly indicates, Australia is also ‘at risk of violating wider international human rights obligations including the Convention on the Rights of the Child’.

The issue of responsibility could also be considered at the national levels. The duty of care owed by the detaining authorities to detainees now appears to be well established in Australian law.[4] Might it be argued on tortious principles that either Australia individually or Nauru and Australia jointly owe a duty of care to the detainees on Nauru? On the facts of Ruhani v Director of Police (No 2) it was very clear that Australia controlled the circumstances of detention under the Pacific Plan #1. Under the current arrangements, it seems that Nauru has taken more control of the asylum seekers, which includes the introduction of legislation to enable processing under Nauruan law. Is this tantamount to assuming responsibility under both national and international law for the fate of the asylum seekers on its territory?

[1] Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) 28 Michigan Journal of International Law 223.

[2] M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 183 (‘M70’).

[3] Foster, above n 1, 417 (citations omitted). Note: This was a view that the majority the High Court appeared to share in M70 because it was consistent with the criteria in the then s 198A(3) of the Migration Act.

[4] S v Secretary, Department of Immigration (2005) 143 FCR 217.