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Australia flouting international law over refugees


Malaysia solutionWhat does the Malaysian solution mean for those being sent back to Malaysia and for international law in general? Although human rights concerns have been high since the deal was first proposed, the issue has become urgent in light of recent allegations that Malaysia has returned refugees registered with the UNHCR to China. I would like to suggest that what is now at stake is Australia's commitment to international law more generally. To clarify this claim, a little background is in order.

International law does not promise refugees 'asylum'. What it does promise is non-refoulement. A state will not send back a refugee to the borders of a country where their 'life or freedom would be threatened' on one of the grounds in the Refugee Convention (race, religion, nationality, social group or political opinion).

This is the core principle of modern refugee law which emerged from the horrors of World War 2. States saw the atrocities of the Nazi death camps and were determined to ensure at least a minimum level of protection (albeit at second hand) for the victims of persecution. The non-refoulement principle is now enshrined in Art. 33 of the Refugee Convention (to which no reservations are permitted).

Whether one is a refugee in international law is a question of fact. Asylum seekers must therefore be presumed refugees for the purposes of Art. 33 unless and until their claims are finally rejected on their merits.

A refugee may be removed from the country in very limited circumstances only. These are where refugees have been 'convicted in a final judgment' of serious offences committed in the receiving state or where there are 'reasonable grounds' for regarding them as a danger to the security of that state. Since those to be deported to Malaysia will never leave detention while they are on Australian soil, these grounds are clearly not applicable.

If reports alleging that UNHCR-registered Uighurs are being returned to China are true, then the possibility of threats to life or freedom of refugees sent to Malaysia is very real.

Because non-refoulement enjoys almost universal support and admits of no exception, there is a large and growing body of authority that it is a peremptory norm. That is, a rule which is agreed on by the international community as a whole and from which no derogation is permitted.

Even most non-parties to the Convention have signed instruments which prohibit refoulement. Malaysia, for example, is a party to the 'Bangkok Principles' on the Status and Treatment of Refugees — although, as the UNHCR notes, it has not enshrined those principles in domestic law.

Peremptory norms (also called jus cogens) can only be modified by other norms of the same status. Under the Vienna Convention 1969, treaties in breach of peremptory norms are void (i.e. of no effect). This is because these are the most fundamental norms in international law.

Other norms usually agreed to be peremptory include the prohibitions on torture, genocide and the slave trade. Some commentators suggest that non-refoulement is peremptory precisely because the prohibition of persecution is peremptory — you may not persecute, so you may not send someone to persecution elsewhere.

This would apply if Australia sent refugees back to their persecutors directly, or if they did so via a third country. (Indeed, the prohibition on refouling people to torture does not even allow for the limited exceptions in the Refugee Convention — Article 3 of the Convention Against Torture.)

If there is a risk of returnees facing ill-treatment in Malaysia — let alone any prospect of deportation to the country from which they originally fled — any refoulement by Australia would be absolutely illegal under international law, as would any agreement to do so.

It goes without saying that any refoulement by Malaysia would also be illegal. The fact that it may already have happened should give the Australian Government pause in its assessment of Malaysia as a safe destination.

If Australia breached this norm it would signal not merely a weakening of the refugee protection regime (as Andy Hamilton recently noted) but also that Australia was not minded to respect one of the most serious prohibitions in international law.

This raises the question of what Australia's attitude is to the other norms in this class — a question that goes well beyond issues of refugee protection. At the very least, any Australian protest about human rights abuses in other countries (of whatever kind) would sound hollow. 


Justin GlynJustin Glyn SJ is a first year Jesuit scholastic studying theology and philosophy in Melbourne. He previously practised law in South Africa and New Zealand. He completed a PhD in international and administrative law in 2008.

Topic tags: Justin Glyn, Malaysia Solution, UNHCR, refugees, asylum seekers



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Existing comments

Australia has shown its shallow, hypocritical and dare I say it, anti muslim stance, upholding historical prejudice and the infamous White Australian Policy.

Our treatment of other races,including and most alarmingly, Australian indigenous people, reveals our ignorance and blaring red necks.

" We are the lucky country" ?

This is how the world sees Australia..basking in a land of sunshine ,wealth and peace, denying refuge to a trace of the world's victims of war .We select the truth we want to hear. We send our army yet detain and deport -defoul-the same people we are defending and " fighting for the right to democracy".

We rapidly sell off our land and wealth and neglect our future as China becomes the next big power.We are a pawn in global relationships but it may be in Australia that a war over food and land erupts.

Who will care? Australian refugees?

Catherine | 30 August 2011  

I have the clear impression that without the possibility of a serious penalty, many politicians are prepared to breach international law when it comes to asylum seekers- for political advantage.Good international standing means little to them until trade deals go against us.

Rebadging asylum seekers as "illegal immigrants" ( The Australian's recalcitrant Greg Sheridan still does so) has worked a treat to this day.Imputed criminality has now blurred into imputed terrorism for many in the electorate and Parliamentarians with law degrees remain silent.

I hope the judges of the High Court find a way to uphold legal principle and "work on" having the statutes which authorise mandatory indefinite detention of asylum seekers removed from Australian law. May 2012 mark a new era in justice with the demise of two decades of mandatory detention laws!

frederika steen | 30 August 2011  

Ultimately this is an argument that Australia can never send back any one arriving on it's shores claiming asylum. The test that is being propounded is that there must be no prospect of the asylum seeker being placed in a position where his life or freedom would be threatened unless convicted in his country of origin, even if through a third country. Who makes that determination and what third country would ever guarantee that?

The fact the Australia a leading developed country with an advanced legal system is itself being accused of human rights violations, shows that there is no third country that could ever meet the test required to process asylum seekers outside of Australia's borders.

Unconvinced | 30 August 2011  

REcently it was shown that Bowen cannot even deport convicted murderers to China because the article 3 prohibition on refoulement is absolute.

But he thinks he can breach all international law by arbitrarily expelling a few hundred innocent refugees without process.

The pollies and media in this country dance their racist dance with each other and none bother with the law.

Marilyn Shepherd | 30 August 2011  

I enjoyed reading this immensely, Justin. Thankyou. It is a model of preciseness of argument and clarity of expression. More please. The only problem at the moment is that the hung parliament makes politics, not policy, the emphasis in Canberra.

Joe Castley | 30 August 2011  

Thanks Justin for raising awareness about reports of Malaysian treatment of Uighurs. Next group to examine for creating an informed attitude to Malaysia's trustworthiness in the current "Malaysian solution" is the Rohingyas who must be among the most despised and neglected of asylum seekers and reportedly are recipients of the same alleged treatment served out to the Uighurs.

Michael Kelly, Bangkok | 30 August 2011  

Thank heaven's for David Manne, Debbie Mortimer and the High Court for scuttling Bowen's and Gillards moronic lunacy.

Marilyn Shepherd | 31 August 2011  

We've yet to read the majority and dissenting judgements so it's too early perhaps to to jump to conclusions about the long-term impact of today's decision. But one thing we do have to be thankful about is that the Court seems to have made it quite clear that the Executive must act according to the Law that the Legislature has passed. And in the midst of our appalling politics and media, that is a precious part of our system that differentiates us from many other countries.

Ginger Meggs | 31 August 2011  

Thank you Justin, and thank God for our Constitution. I knew the High Court would throw out this ridiculous Malaysian solution. Asylum seekers is a non issue in this vast country. I wonder how many Australians have actually ever seen one refugee, while daily, thousands of refugees are arriving, yes, by boats, Western Europe. It's high time both major parties stopped being led by right wing journalists and talk back radio shock jocks, and put things in perspective to the Australian people

LouW | 02 September 2011  

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