High Court of Australia Determines Questions of International Human Rights Law

Scott Cosgriff, Refugee Rights Subcommittee Co-chair at Australian Lawyers for Human Rights, discusses a series of recent High Court of Australia judgments which are among the last in the HCA’s history as an external appeals court for Nauru, following the termination in December 2017 of the treaty between Australia and Nauru which established this jurisdiction.

Scott Cosgriff

Complementary protection and internal relocation: The Nauru cases

Scott Cosgriff of Australian Lawyers for Human Rights looks at three recent decisions of the High Court on complementary protection and internal relocation.

On 16 May 2018, the High Court of Australia dismissed appeals against three decisions of the Supreme Court of Nauru relating to refugee status and complementary protection. Following the termination in December 2017 of the treaty between Australia and Nauru establishing this jurisdiction, these judgments are among the last in the High Court’s history as an external appeals court for Nauru.

The three cases involved decisions of the Nauru Refugee Status Review Tribunal on the legal status of people who had been transferred to Nauru under Australia’s offshore processing arrangements. At stake was whether the appellants would be recognised as eligible for international protection and permitted to remain in Nauru, or whether Nauru could lawfully deny them protection and return them to their countries of nationality. For some refugees on Nauru, refugee status is also accompanied by the possibility of resettlement in the United States.

A central issue in all three cases was the law of complementary protection. Complementary protection refers to the observance of non-refoulement obligations arising other than under the 1951 Convention relating to the Status of Refugees. Section 4(2) of Nauru’s Refugees Convention Act accordingly provides that “the Republic must not expel or return any person to the frontiers of territories in breach of its international obligations.”

Complementary protection is a feature of legal frameworks for international protection in many jurisdictions. But Nauru’s legislation is exceptional in that it directs decision-makers to the full content of Nauru’s international obligations, unencumbered by statutory modifications or limitations. The result in these cases was the rare spectacle of the High Court of Australia hearing and determining questions of international human rights law.

The High Court (Kiefel CJ, Gageler and Nettle JJ) unanimously dismissed each of the three appeals. The grounds for appeal involved both procedural issues and several questions of substantive human rights law. This casenote focuses upon the latter.

Referred to by a pseudonym, EMP144 had been an official in a pro-Royalist political group in Nepal whose family had been persecuted by Maoists. DWN027 and CRI026 were Pakistani nationals who feared harm from the Taliban and members of a particular political party, respectively.

In each case, the Tribunal had found that the appellants faced a real threat of harm in their countries of nationality, but concluded that they were not eligible for refugee status or complementary protection because the harm could be avoided if they were to relocate to a safer area of the country and it would be reasonable for them to do so.

The relevance of internal relocation to complementary protection

In each of the three cases, the appellant argued that the Tribunal had misapplied the law of complementary protection in relation to the test for internal relocation. This test was developed in jurisprudence on the refugee definition throughout the 1980s and 1990s, and resolves cases in which a person’s fear of persecution is well-founded in only part the territory of their country of nationality (as may often be the case where the feared persecutor is not a government).

While its textual origins in the Refugee Convention are contestable, it is well established in practice that where there is a sufficient likelihood of persecution in a particular part of a person’s country of nationality, that person may nonetheless be ineligible for refugee status if it would be reasonable for them to relocate to another part of the country. Factors such as livelihood opportunities, family connections and the personal vulnerabilities of an applicant may militate for or against a finding that relocation would be reasonable.

Counsel for each of the appellants argued that this principle did not apply to complementary protection. It was argued for the appellants that the only question relevant to the assessment of a claim for complementary protection was whether there is a “real risk of exposure to inhuman or degrading treatment or punishment” (among other forms of harm) in any place in the country of nationality.

The Court rejected this ground in its reasons in CRI026, and referred to the same reasons in the other two judgments. The Court noted that the content of a treaty obligation depends on the construction that the international community would attribute to it and its operation in particular circumstances, with “considerable weight” given to interpretations by the independent treaty bodies (at [22]).

The Court took note of the UN Human Rights Committee’s General Comment No 31, in which the Committee observed that the International Covenant on Civil and Political Rights gives rise to non-refoulement obligations where there are “substantial grounds for believing that there is a real risk of irreparable harm” of the kind contemplated by articles 6 and 7 of that treaty. The Court held that, in order to meet this “substantial grounds” threshold (at [24]):

The risk of harm must be both necessary and foreseeable and, according to the weight of relevant international jurisprudence, it is neither if it can be avoided by reasonable relocation within the applicant’s country of nationality.

The Court found support for this conclusion in international human rights jurisprudence, including treaty body decisions on individual complaints, the practice of other States and decisions of the European Court of Human Rights on analogous provisions of the European Convention on Human Rights. The Court concluded that (at [22]):

Taken as a whole, international law and practice leave no doubt that, unless the feared persecution emanates from or is condoned or tolerated by state actors … an applicant’s ability reasonably to relocate within a receiving country, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection.

Freedom of movement and the rights of the child in internal relocation

Seizing upon the Nauruan legislation’s open-ended incorporation of Nauru’s international obligations, these cases saw counsel advance two novel arguments on the role of broader human rights principles to the internal relocation test. These arguments were supported by the conception of human rights as indivisible, interdependent and interrelated.

In DWN027, counsel for the appellant had argued that Nauru’s obligations as a party to the Convention on the Rights of the Child required that the impact of relocation on the appellant’s children be considered in relation to his prospective relocation in Pakistan. The Court acknowledged that this raises complicated questions about the inter-relationship between the relevant treaties.

Nonetheless, the Court found it unnecessary to address those questions because the appellant had not adduced evidence before the Tribunal that the interests of his child would be adversely affected (at [16]). The legal question accordingly remains unresolved.

Meanwhile, counsel for CRI026 had argued that to return the appellant to Pakistan on the basis that it would be reasonable for him to relocate within that country would amount to a violation of Nauru’s international obligations because it would involve a denial of the appellant’s right to freedom of movement in his country of nationality – a right that is protected by article 12 of the ICCPR. This argument failed for several reasons.

Firstly it appears that it was truly novel, and counsel was not able to identify international jurisprudence linking non-refoulement obligations to the right of freedom of movement in the manner proposed (at [47]).

Separately, the Court held that a State’s obligations under article 12 relate to freedom of movement in its own territory and do not extend to an obligation to procure freedom of movement for a person in another country (which in any case could not be achieved through international protection) (at [46]; [48]).

Finally, the Court could find nothing in the nature of internal displacement that offended the right to freedom of movement, stating that (at [45]):

[A] rational choice to relocate from that place to another place to avoid the risk of harm in the former is not a denial of freedom of movement but a manifestation of its exercise.

This characterisation may understate the content of a State’s obligations to protect and fulfil the right to freedom of movement, including as outlined in the Human Rights Committee’s General Comment on this issue (a source of law that their Honours had held should be given “considerable weight”).

The application of these decisions the context of asylum applications in Australia is limited by the codification of the refugee definition and of complementary protection in the Migration Act 1958, but they remain a notable foray of the High Court of Australia into international human rights jurisprudence.

They also expose a difficulty that plagues the theory of complementary protection: States are permitted to send non-citizens to a risk of some human rights violations but not others, and the basis in principle for the prevailing delineation remains open to question.

Scott Cosgriff is a member of Australian Lawyers for Human Rights and Co-Chair of its Refugee Rights Subcommittee. He was previously Senior Solicitor at the Refugee Advice & Casework Service and worked as a Refugee Resettlement Expert with UNHCR in Latin America. He holds a Masters of Laws from the London School of Economics, where he was awarded the Lauterpacht/Higgins Prize for Public International Law. Contact Scott at refugees@alhr.org.au