Scott Cosgriff


Suppose I vet them closely and I do not take any? … How does that help you?


Well, we assume that we will act in good faith.

In July 2017, the UN High Commissioner for Refugees accused Australia of backtracking on an understanding. In a strong statement, UNHCR said that it had agreed to assist with the arrangement to resettle refugees from Papua New Guinea and Nauru to the United States “on the clear understanding” that the handful of refugees with close family ties in Australia would ultimately be allowed to reunite with their families there. The Australian media was puzzled in the aftermath. What had been agreed? Questioned on what the Australian immigration minister had promised, Assistant High Commissioner Volker Türk laid bare the levels of discretion involved: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”

Heavy on policy, light on international law

Refugee resettlement describes the scenario in which a country allows a recognised refugee, in a planned an orderly way, to travel to that country and live there permanently. Like the leaked transcript of the conversation between the Australian Prime Minister and the US President released a week later, the Assistant High Commissioner’s remarks demonstrated that resettlement is heavy on policy and diplomacy, and light on international law. The 1951 Refugee Convention and its 1967 Protocol establish obligations in relation to refugees who happen to come under a state’s jurisdiction, but no legal obligation to assist refugees who are elsewhere.

 Countries that choose to maintain a resettlement program may plan to resettle a certain number of refugees each year, but they retain discretion in relation to each and every individual. It is for this reason that the prime minister could so confidently assure the incoming president that the agreement between their countries did not require the US to receive a single person. It required only that the US consider their cases. Turnbull’s description was an accurate one: resettlement countries don’t blindly agree to receive groups of thousands of individuals on word alone. They might set a target, but in reaching that target they tend to scrutinise the minutiae of each individual’s life, and retain the prerogative to refuse admission until the very end.

Turnbull’s reliance on this aspect of the refugee resettlement process in his conversation with the president can be understood as a gambit aimed at offering maximum comfort while trusting that if the ordinary processes of the US Refugee Admissions Program (USRAP) could run their course, the Australian government would get the result it wanted. Meanwhile, like Turnbull to Trump, UNHCR foresaw that if Australia would agree to apply its normal resettlement processes to the Australia-linked family cases in good faith, those processes would see them resettled in Australia. If Australia later reneged, it was guilty of the very treatment that it fears from the United States.

How resettlement works

The Australia-US arrangement involves typical processes applied to an atypical situation. UNHCR submitted the cases of more than 160,000 refugees to governments around the world in 2016 in response to voluntary pledges. A handful of countries account for the overwhelming majority of places. Each submission from UNHCR contains a detailed assessment of an individual’s identity, background, legal status and protection needs. Although the 2016 figure was a global twenty-year high, it represented less than one per cent of the 22.5 million refugees in the world. After the United States announced that it would cut its target in 2017, one per cent is now a distant goal.

If so few refugees can be resettled each year, the apportionment of those limited places is a process ripe for inequity. Which refugees should be prioritised? Under UNHCR’s own long-standing policies, a resettlement case must fall under one or more of the seven categories in the UNHCR Resettlement Handbook before it will refer that case to a country for consideration. The categories are premised on the logic that with so few places available, resettlement should be strictly for those refugees who need it most.

Hierarchies of worthiness are familiar in Australian discourse on refugees. Australian governments have long defended punitive asylum policies in humanitarian terms, penalising some refugees in the name of assisting others elsewhere. At the Leaders’ Summit on Refugees in New York in 2016, Turnbull stated:

“…our ability to deliver a generous humanitarian programme – the third most generous humanitarian programme in the world […] is underpinned by secure borders. Because we are able to say that we decide who comes into Australia and how long they stay, because we have control of our borders, we are able to deliver that generous humanitarian programme.”

For those who were sceptical of the link between toughness and generosity, the Australian government’s announcement in 2015 that it would increase its humanitarian intake by a one-off 12,000 places had hinted at the promise of both community concern and political leadership on resettlement.

However, documents obtained by the Refugee Council of Australia (RCOA) show that the subsequent expansion of the humanitarian intake has largely bypassed UNHCR, prompting RCOA to question whether vulnerability is really central to the government’s processes, or whether refugees are being “cherry picked” based on other factors such as skills or religion. Christian refugees, for example, made up only 12 per cent of those referred by UNHCR to Australia from the Middle East in 2015-2016, but in his phone call with the US president, Turnbull said that Christians would make up 90 per cent of the additional Syrian intake. “It is not a sectarian thing” on Australia’s part, the prime minister said, but a simple recognition “that when the situation in the Middle East settles down – the people that are going to be most unlikely to have a continuing home are those Christian minorities.”

UNHCR’s own policies similarly recognise that refugees need resettlement when neither local integration nor voluntary repatriation are genuine prospects. However, UNHCR would be failing to live up to its humanitarian mandate if it were to announce that such a predicament was the fate of Christians alone.  

Few would deny that the Syrian and Iraqi refugees now welcomed in Australia are in need of resettlement, but in a global system where so many presently need what so few can presently have, the question is whether such narrow selectivity represents a contribution in good faith. If the most destructive parts of Australia’s refugee policy are held out as the price of its resettlement program, that program deserves be held to a high standard. For resettlement policy – unlike for asylum policy – international law will not provide that standard for us.

Scott Cosgriff is a Senior Solicitor at the Refugee Advice & Casework Service. He is Co-Chair of Australian Lawyers for Human Rights’ Refugee Rights Subcommittee and has worked as a Refugee Resettlement Expert with UNHCR in Latin America.