Non-refoulement in Australian law
Overview
Non-refoulement is an international law principle that prohibits states from returning a person to a country where they face a real risk of serious harm — including persecution, torture, or arbitrary deprivation of life. In Australian law, the principle is implemented primarily through the protection visa framework in the Migration Act 1958. Significantly, s 197C of the Migration Act provides that an officer's removal obligations under Part 9 of the Act are not limited by non-refoulement obligations — this provision has been the subject of significant litigation and human rights concern.
Australia is bound by non-refoulement obligations under three main international instruments:
- Article 33 of the 1951 Convention Relating to the Status of Refugees (the Refugees Convention)
- Article 7 of the International Covenant on Civil and Political Rights (ICCPR) — prohibition on torture and cruel, inhuman or degrading treatment
- Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
Legal basis
- Article 33 of the Refugees Convention — the foundational non-refoulement obligation: no Contracting State shall expel or return a refugee to a territory where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion
- Section 36(2)(a) — implements the Refugees Convention non-refoulement obligation through the refugee criterion for the Subclass 866 visa
- Section 36(2)(aa) — implements the ICCPR and CAT non-refoulement obligations through the complementary protection criterion
- Section 197C — provides that, for the purposes of the removal powers in Part 9, an officer's obligation to remove a person is not limited by non-refoulement obligations — this was a 2014 legislative amendment of constitutional and human rights significance
- Section 198 — the removal obligation itself
How it works
How non-refoulement obligations are discharged
Australia discharges its non-refoulement obligations principally through the protection visa system. A person in Australia who claims to face serious harm in their home country may apply for the Subclass 866 Protection Visa. If the claim is found to engage Australia's protection obligations (under either the refugee criterion or the complementary protection criterion), the visa is granted and the person cannot be returned.
The s 197C controversy
Section 197C, inserted in 2014, provides that a removal officer does not breach any obligation in the Migration Act by removing a person even if that removal would breach Australia's non-refoulement obligations. The provision was intended to clarify that removal officers cannot be sued for breach of the Act on the basis that they removed a person to a place where the person faced non-refoulement harm.
The provision does not override Australia's obligations under international law; it addresses only the domestic legislative obligations of officers. Australia's international law obligations persist regardless of s 197C. The United Nations Human Rights Committee and the UN Committee Against Torture have both commented on Australia's non-refoulement compliance in individual complaints.
Offshore processing and non-refoulement
Under the offshore processing regime, persons who arrive by boat without authorisation are transferred to regional processing countries (Papua New Guinea or Nauru). The legal basis for offshore processing and its interaction with non-refoulement has been extensively litigated. The High Court held in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 that offshore processing is authorised by the Migration Act.
Non-refoulement in character cancellation cases
Persons whose visas have been cancelled on character grounds may argue that removal would breach Australia's non-refoulement obligations if they face persecution or serious harm in their home country. In such cases, the protection obligations may be relevant to the exercise of the Minister's discretion to revoke a mandatory cancellation under s 501CA, but s 197C provides that removal remains obligatory once a removal order is in place.