The "safe third country" approach vs. the notion of non-refoulment in international law : a critical examination of Australian law and policy

Abstract

The notion of refugee was born immediately after World War I, so as to protect and promote human rights. After the adoption of the Convention Relating to the Status of the Refugees, however, much has changed in the world. Although the number of signatories is increasing, the Convention remains the same. Each country now appears to have erected barriers to prevent refugees from entering their territory and one of the much debated substantiations for so doing is the "safe third country" approach. This thesis will focus on the "safe third country" and "effective protection" principle which some see as a breach of Article 33 of the Convention known as "refoulment" and closely examines the law and policy in Australia, and makes some international comparisons. It also examines the doctrine of effective protection as interpreted by the Australian Courts and considers whether it breaches Australia's Refugee Convention obligations, and analyzes two major cases, that of Minister for Immigration & Multicultural Affairs v Thiyagarajah and NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs. This thesis examines statutory effective protection as comprised in ss 36(3)-(7) of the Migration Act and discusses Australia's attempted justification of "safe third country" provisions. This thesis argues that the criteria for returning refugees to 'safe third countries' should not be determined solely by one Country without having proper agreement with the proposed "safe third country". In constructing these criteria, this thesis argues that Australia cannot send any refugee to another country in the name of the "safe third country" principle if there is a risk, whether knowingly or inadvertently, that the latter will violate rights which Australia itself is obligated to respect. This thesis also recommends requirements for the return of refugees to third countries, a list of minimum requirements of international law and a list of recommended best practice criteria. The underlying theoretical framework of this thesis has thus become a bilateral agreement with the "safe third country", with monitoring arrangements by the International Humanitarian Organizations, such as, UNHCR, for co-operation. It is a strong argument of this thesis that without any existing agreement, the safe third country principle cannot guarantee non-refoulment. This thesis attempts to provide the solution to breach of the non-refoulment principle by promoting the "agreement" concept through which Australia can assist refugees and comply with Article 33 of 1951 Refugee Convention and Protocol. The theory would also play a role to establish and promote cooperation between people on a government level and on a non-governmental level so that there will be a reasonably appropriate understanding within Australia of the plight of refugees. Further, "agreements" are essential for governments to maintain the reputation of Australia as a nation within the international community that respects refugees and human rights.

Date of Award	2011
Original language	English