Australia's international obligations (migration context)
Statutory definition
Section 36(2)(a) and (aa) of the Migration Act 1958 (Cth) codify Australia's non-refoulement obligations. Section 36(2)(a) implements the Refugee Convention obligation; s 36(2)(aa) implements obligations under other treaties including the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).
Explanation
Australia is a signatory to the 1951 Refugee Convention and its 1967 Protocol, the Convention Against Torture (CAT), and the International Covenant on Civil and Political Rights (ICCPR), among other human rights instruments. These treaties impose obligations on Australia not to return (refoule) a person to a country where they face persecution or serious harm.
These obligations are given domestic effect in the Migration Act through the protection visa provisions. A person found to engage Australia's obligations under the Refugee Convention is a refugee within the meaning of the Act and is entitled to a protection visa.
Australia's treaty obligations also interact with the offshore processing regime — the legality of returning persons to third countries for processing has been the subject of constitutional and international law challenges.
How this term is used
In the administrative and judicial review context, Australia's international obligations are relevant as a source of interpretation for ambiguous provisions and as a constraint on the exercise of executive discretion. Courts have held that Parliament is presumed to legislate consistently with international obligations.