Non-refoulement applications

1. Refoulement is the act of returning a refuigee to a place where there is a real risk to their life or liberty.

2. Article 33 of the Refugees Convention prohibits refoulement:

“1. No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (emphasis added)

2. The benefit of the present provision may not, however, be claimed by a refugee when there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

3. The Australian government says it has reached agreement with the government of Iran to return Iranian asylum seekers against their will. It is not clear that the agreement works as the government says. Nevertheless, if it does work as the government says, there are proceedings whivh can be taken to prevent the return of a genuine refugee if that return would amount to refoulement.

4. The ingredients of refoulement are:

a) a threat to return to their country of origin;

b) a person who is unwilling to go there

c) because of a well-founded fear of persecutionon account of his race, religion, nationality, membership of a particular social group or political opinion;

d) a risk that the person’s life or liberty will be threatenedon account of his race, religion, nationality, membership of a particular social group or political opinion

5. The power to remove a person from Australia arises under s. 198 of the Migration Act. In the typical case, section 198(6) applies:

198 (6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a) the non‑citizen is a detainee; and

(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

(iii) the visa cannot be granted; and

(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

6. That power neither requires nor authorises acts amounting to refoulement. "Remove" is defined in the Migration Act as meaning "remove from Australia". Clearly, it does not authorise or require removal to a particular place.

7. Article 3 of the Torture Convention (to which Australia is a party), prevents refoulement to a country where an individual faces a real chance of torture: see E v Australia, at http://www1.umn.edu/humanrts/cat/decisions/120-1998.html
This provides an independent basis for restraining the return of a person to a country where they face torture.

8. It is important to write to the Minister first to see whether he intends to return the person to Iran. Here is a sample letter.

9. Here is a pro forma instruction sheet.

10. Here is a pro forma Application and Statement of Claim.

11. Here is a pro forma submission for injunction to prevent refoulement.