SPECIAL ELECTION EXPLAINER
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FORCED RETURN / REFOULEMENT
The general prohibition against refoulement, or ‘forced return’, is a fundamental principle of international refugee law. Often referred to as the principle of ‘non-refoulement’, in general terms, this concept prohibits states from returning a refugee or asylum-seeker to territories where there is a risk that his or her life or freedom would be seriously threatened.
Non-refoulement first emerged as a general principle of international law during the early part of the 20th century. Following the end of World War II, the prohibition against refoulement was formally codified in the 1951 Convention Relating to the Status of Refugees (Refugee Convention). This was in response to the unprecedented number of refugees fleeing the violence of the holocaust, and widespread condemnation of a number of states denying entry or forcibly returning millions of those seeking safety.
Under article 33 of the Refugee Convention, no state party to the Convention is permitted to expel or return (‘refouler’) a refugee to a country where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. This general rule is subject to the caveat that the benefit of this protection may not be claimed by a refugee who is reasonably regarded as a danger to the security of the country, or having been convicted of a particularly serious crime, is considered a danger to the community.
This statement remains the most well-known expression of the principle of non-refoulement in international law. It is also now included in similar terms in a range of other international treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. It has also been suggested that the principle of non-refoulement is now so fundamental that it cannot be derogated from by treaty or state practice (known in international law as a ‘jus cogens norm’).
In circumstances where an individual is not granted refugee status because they do not fall within the narrow grounds of the refugee convention, international human rights law may still offer some protection from refoulement. This is known as ‘complementary protection’ and it most commonly arises in circumstances where a person faces real risks of torture or other forms of cruel or inhuman treatment or punishment.
Despite the fundamental status of the principal of non-refoulement and its clear expression in major international conventions, in recent years it has come under increasing challenge. In particular, following the terrorist attacks in the United States (US) in 2001, a number of countries, including the US, have increasingly sought to rely on the ‘national security’ exception to limit the broad application of the non-refoulement principle.
In the Australian context, this principle has also come under increasing challenge in relation to boats carrying asylum seekers being turned back to their point of origin by the Australian Navy. In 2014 a number of boats of asylum seekers attempting to reach Australia were turned back to Sri Lanka. A statement by a group of leading legal scholars suggested this action raised ‘a real risk of refoulement, in breach of Australia's obligations under international refugee and human rights law’, including under the Refugee Convention. Turnbacks to Indonesia and other locations have also received international criticism. In December 2017, an asylum seeker living in Australia was also forcibly returned to Sri Lanka after missing the deadline to submit an application for protection.
Concerns have also been raised that the removal by Australia of asylum seekers to Nauru or Papua New Guinea may also violate Australia’s non-refoulement obligations in some circumstances, due to the dangers faced by asylum seekers at these locations. The principle of non-refoulement not only prohibits sending a refugee back to the country they have fled from but also prohibits sending them to any country where they are at real risk of persecution or significant harm.
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Last updated 31 January 2018