Non-refoulement
Statutory definition
Article 33 of the Convention Relating to the Status of Refugees (1951) prohibits Contracting States from expelling or returning a refugee to territories where their life or freedom would be threatened. This obligation is incorporated into Australian domestic law through s 36(2) of the Migration Act 1958, which requires the grant of a protection visa where the applicant is a person to whom Australia has protection obligations. Australia also has non-refoulement obligations under the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), implemented through s 36(2)(aa) (complementary protection).
Explanation
Non-refoulement is the bedrock of international refugee law. In Australia, the obligation is expressed through the protection visa framework: a person cannot be removed to a country where they would face a real chance of serious harm. The obligation is not absolute — it does not protect persons excluded under Art 1F of the Refugee Convention (war criminals, persons who have committed serious non-political crimes). Australia does not allow non-refoulement arguments to be raised directly in removal proceedings — protection must be sought through the visa system (see s 197C of the Migration Act).