Australia's Obligation to the Non-Refoulement Policy - Sri Lanka - Case Study
Dear Minister,
I strongly urge you to consider Australia’s obligations under international law to the principle of non-refoulement. Non-refoulement is one of the most fundamental rights set out in The Refugee Convention (Article 33) and even states who are not signatory to the 1951 Convention are expected to uphold said obligation (Betts and Milner, 2019). This principle is also present within the Convention against Torture and the International Covenant on Civil and Political Rights (Fedcourt.gov.au, 2011). Non-refoulement is the right of refugees and asylum seekers not to be forcibly sent back to any country where their life or freedom may be arbitrarily threatened (ALRC, 2019); through persecution, torture, inhuman treatment, discrimination and or subject to the death penalty (McAdam and Chong, 2014). This human rights law is formed upon the basis of five discriminatory points that said posed threat stems from. These five reasons include race, religion, nationality, political opinion and/or membership to a particular social group (ALRC, 2019). It is important to recognise the distinctions between non-refoulement and complementary protection and how the two correlate. The latter refers to protecting refugees from any ill-treatment that is not specifically linked to said five characteristics (McAdam and Chong, 2014). The removal of complementary protection (replacing it with discretionary processes) would risk the breaching of the non-refoulement policy (McAdam and Chong, 2014), as claims for protection and risk factors in countries of origin may not be adequately considered. Mistakes within decision-making may also be made if there is too much stress placed upon these ministerial discretions and not enough alternative administrational agreements (Aph.gov.au, 2019).
In order to avoid any breaches to the principle you must also consider the possibility of “chain refoulement (McAdam and Chong, 2014)”. This refers to sending individuals to other countries who do not pose any threats, however, said countries deciding to send the persons back to a place of danger. This indirect form of refoulement would be at the fault of Australian officials who oversaw the original relocation (McAdam and Chong, 2014). Under Australia’s legal human rights obligations, we are responsible for the refugees who are relocated and face further potential relocation from said host country. In regards to the Biloela Tamil family, whether or not their refugee status or protection rights have been determined or accepted, it is important to consider the threats they may face if they are exiled back to Sri Lanka. The United Nations and Amnesty International researchers have verified that since the end of the civil war there have been several cases of torture, ill treatment and other forms of harassment directed at members of the Tamil minority (Eddie, 2019). Australia’s non-refoulement policy may be used in this case to protect this family from potential persecution and discrimination.
Some lawyers have argued that there is a possibility that the children in this case could be made stateless if they are returned to Sri Lanka. Below I have outlined how this situation might come about, the problems with statelessness, as well as highlighting Australia’s obligations under international law to prevent statelessness:
Sri Lankan Tamil refugees who lack sufficient proof of residence and I.D. remain stateless (Ghosh, 2016). Statelessness in Australia is caused by those seeking asylum lacking adequate proof of identity and if their country of origin refuses to acknowledge their nationality (Richter, 2005). This lack of documentation is why many stateless individuals are forced to travel through unauthorised channels when seeking protection (Hirsch, 2017). There are various problems with statelessness, especially in Australia. Those who arrive without a visa are usually placed in detention centres, leaving them vulnerable to sexual and physical abuse; many cases resulting in suicide (Hirsch, 2017). Some children described their detention life as worse than before migration (Zwi and Mares, 2015). Stateless groups are also often subject to human rights breaches under the ‘Refugee Convention’ (Hirsch, 2017) and many who are stateless but not considered refugees are unable to be protected under said convention (Hirsch, 2017). Temporary visas will not guarantee Australian citizenship, and when families are deemed stateless but not considered refugees, they face a fate of indefinite detention (Hirsch, 2017). Nationality, under international law (Unrefugees.org, 2019) is integral for one acquiring basic human rights (Richter, 2005), opportunities and protection (Hirsch, 2017). Without a legal tie to a state, individuals cannot successfully assimilate into society and be granted the same sovereignty as others (Richter, 2005).
Australia has many legal obligations under international law to prevent statelessness, as party to the 1954 Convention (Richter, 2005). Australia is required to facilitate assimilation and reduce statelessness through the granting of nationality, if persons have a stable link to a country (Hirsch, 2017). Australia must grant nationality to individuals who were born within its territories and who would otherwise be stateless. However, citizenship is not automatically granted if one of said child’s parents is not/was not a permanent Australian resident (Hirsch, 2017). If said child, however, remains in Australia for ten years, citizenship is allowed (Hirsch, 2017). If children are born to asylum seekers and are proven stateless, they are able to apply for citizenship under the Australian Citizenship Act 2007 if the child is a) born in Australia, b) is not a citizen of another country, c) has never been a national of another country and d) is not entitled to acquire a foreign country’s nationality (Hirsch, 2017). Despite this opportunity of application, Australia has placed many obstacles in front of those seeking nationality, especially if born in offshore processing countries (Hirsch, 2017). These children are then considered ‘illegal maritime arrivals’ (Gothe-Snape, 2017) like their parents and are denied permanent protection in Australia. It has also been recommended, in regards to indefinite detention, that community placement be pursued instead (Humanrights.gov.au, 2019), in order to provide stateless individuals with less invasive, abusive and restrictive living arrangements.