The principle of non-refoulement prohibits nation-states from removing refugees from their jurisdiction or effective control to send them to the country from which they fled, when it entails returning them to a genuine risk of irreparable harm.
Non-refoulement underpins the 1951 Convention Relating to the Status of Refugees, of which article 33 contains the prohibition on return that applies to a person whose life or freedom is threatened due to “race, religion, nationality, membership of a particular social group or political opinion”.
Australia ratified the Refugee Convention on 22 January 1954. Since then, the nation has held to a policy of non-refoulement. Indeed, that's why refugees arriving by boat have been indefinitely detained offshore since July 2013, rather than simply returning them to their countries of origin.
The last two decades, however, have seen those in power in this country becoming increasingly ill at ease with the non-refoulement principle.
Then immigration minister Scott Morrison passed a 2014 migration amendment bill that amongst other reforms, weakened the nation's non-refoulement obligations to make it easier to remove unlawful noncitizens.
Non-refoulement in action
Heard in July 2020, a Federal Court case known as AJL20 saw a 29-year-old Syrian man, who has been a long-term resident of this country, released back into the community after spending six years in immigration detention on an argument based partially on non-refoulement.
The man had migrated to Australia as a child in 1996. In 2014, his visa was cancelled under the character grounds test contained in section 501 of the Migration Act 1958 (Cth) (the Act). The test requires the automatic cancellation of a noncitizen's visa if they fail it.
Despite the cancellation of his visa, the man remained in immigration detention, as, under its non-refoulement policy, Canberra couldn't send him back to war-torn Syria, as he would face the risk of irreparable harm.
Human Rights for All principal Alison Battisson argued that under habeas corpus there needs to be a reason for detaining someone, and her client had asked to be returned to Syria, which the law requires must be done “as soon as reasonably practicable”, regardless of non-refoulement obligations.
So, as it was obvious the government had not demonstrated that it was pursuing the man's removal to Syria, he wasn't being detained for a genuine purpose and, therefore, he had to be released into the community.
Turning to refoulement
NSW barrister Stephen Lawrence told Sydney Criminal Lawyers that the lawyer for the immigration minister recently “confirmed that Australia had abandoned its long-standing policy of complying with the Refugee Convention, in not returning refugees facing the real risk of persecution”.
This happened in the Federal Court case known as MNLR, in which Lawrence provided counsel.
The case involved a young Iraqi man who'd come to Australia as a teenager and is now facing deportation as he failed the character grounds test within the Act.
The Iraqi man arrived in 2011 having been granted a humanitarian visa, as he's a part of a persecuted minority. Due to a conviction, his visa was cancelled in 2016. And the tribunal has since upheld this decision, despite the risk involved in sending him back.
Federal Court Justice Michael Wigney outlined that “the minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there.”
Handed down on 16 March, the judgement marks a further erosion of the federal government's adherence to the principle of non-refoulement, especially when compared with its decision not to deport the long-term Syrian detainee.
And given the general direction the Coalition has taken to refugees since coming to office in 2013, it's reasonable to expect this backtracking on the nation's international refugee obligations is only set to get worse.
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