"Effective Protection" in Australian Law by David Bitel* This article was originally published as part of ‘UNHCR Discussion Paper: The principle of effective protection elsewhere,’ in Newsletter No 1/2004 of the United Nations High Commissioner for Refugees Regional Office for Australia, New Zealand, Papua New Guinea and the South Pacific.
In the lead-up to the October 2001 election in Australia, Prime Minister Howard loudly
proclaimed the slogan "we will control who enters Australia".
Some weeks before, several hundred largely Afghan men, women and children were
rescued from a sinking Indonesian vessel by the Norwegian ship, the "Tampa". The
captain then sought and was denied by the Australian government permission to bring his
human cargo of people who claimed to be refugees to Australia. This set off a chain of
incidents with international implications and resulted promptly in significant legislative
changes to Australia’s already tight and complex immigration laws all designed to give
greater effect to the principles underlying the election slogan. In particular, a policy
known as the "Pacific Solution" was created whereby asylum seekers arriving in Australia
without valid visa documentation were denied entry and removed to nearby Nauru and
Manus Island, in Papua New Guinea, to await the outcome of their status determination.
The re-elected Australian government in its next Budget set aside billions of dollars to fund
"border protection", controversially employing the Australian navy in coastguard activities
along the northern and western waters. In a climax to these policies, following the arrival
of a small group of Turkish men of Kurdish background, through the cordon of security
which had been created, on Melville Island, a part of the Northern Territory of Australia,
an Executive Order with arguably retrospective effects excised Melville Island from
Australia’s migration zone. The men were then forcibly put back on the small Indonesian
fishing vessel on which they had entered Australian waters and escorted by the Royal
Australian Navy out of Australia and back to Indonesia, from whence they were deported
back to Turkey. Whilst on Melville Island, the Australian government admitted the men
sought protection of Australia under its obligations as a signatory of the Refugee
Convention. Indonesia, it should be noted, is not a signatory and so is not bound by its
obligations, in particular the obligation imposed under Article 33(1) that: "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." Many believed
Australia had been complicit in a direct breach of the Convention and had misapplied the
The obligation under Article 33 is subject to the important rider that applications for a
protection visa (as the refugee application is technically called) may not need to be dealt
with by a decision maker where there is effective protection in a third country which does
not infringe the right of non-refoulement, or where pursuant to Article 1E the Convention
does not apply to a person recognized as having the rights and obligations attached to the
possession of nationality of a third country.
Australian courts have grappled for some years with the meaning and significance of these
rules and developed jurisprudence in relation to the Effective Protection rule. Justice von
Doussa provided the leading judgment of the Full Court of the Federal Court of Australia
in Thiyagarajah v Minister (1998) 80 FCR 543, a case concerning a Sri Lankan national
who prior to his entry to Australia was a resident in France where he had been granted
refugee status, and confirmed that Australia does not have protection obligations to a
person who has been accorded effective protection in a third country. This is protection
which will effectively ensure that there is no breach of Article 33, where the person has a
right of residence in that country and is not subject to Convention harms. If the country is
a Convention country and can be expected to honour its obligations thereunder, return is
permissible whether or not the person has a right of residence there, or even where the
country is not a Convention country, but it can be expected that country will afford the
person effective protection. (Per French J in Patto v MIMA (2000) FCA 1554 para 37.)
The Courts have noted that there is no obligation to find a guarantee of protection will exist
in the third country, and that in assessing the likelihood of protection available, the real
chance test applies but no other rigid test. Features considered relevant include whether
there is an availability of a system for the protection of the citizen and a reasonable
willingness by the State to operate it, whether as a matter of practical reality there is a real
chance the third country will not accept the refugee and will refoule him or her, and
whether the refugee has a right to reside in, enter and reenter the third country. The
decision requires findings of fact by the decision maker on matters objectively relevant to
the decision at the date of decision. It is thus a matter of practical reality and fact that is
In a 1999 legislative amendment, Sections 36(3) to (7) were inserted into the Migration
Act 1958, which the Government intended as a codification of the doctrine of Effective
Protection. In fact, the Courts determined that because of its different terminology, the
new law provides for a complementary legal regime for the Effective Protection rule.
"Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose and is expressed, any country apart from Australia, including countries of which the non-citizen is a national."
Subsections 4 and 5 ensure that applicant’s fears of persecution in the third country must be
tested against the Refugee Convention and that an assessment must be made that that
country will not refoule the refugee. In a neat summary of the contemporary position in
Australia, Justice Stone in the Full Court of the Federal Court decision of MIMA v Applicant C (2001) 116 FCR 154 noted:
"The combination of the amendments to Section 36 and the doctrine of effective protection leads to this position. Australia does not owe protection obligations under the Convention to: (a) a person who can as a practical matter, obtain effective protection in a third
(b) a person who has not taken all possible steps to avail himself or herself of a
legally enforceable right to enter and reside in a third country."
The onus is on the applicant to prove the lack of effective protection or the inability to
return to or lack of right to enter the third country, and where an applicant refuses to
cooperate one judge expressed the view that there was a constructive waiver of his claim to
Convention protection. Nevertheless, if there is a real doubt about what the third country
will do, Australia’s protection obligations continue. As noted by Justice Hill in V586/00A v MIMA (2002) 122 FCR 57, the decision maker must be comfortably satisfied that the
applicant with no legal right to enter a safe third country will be granted admission there.
These principles nevertheless contain complexity and still need further clarification in
some important respects. Thus, what is precisely meant by the terms "legally enforceable
right"? What is the situation where a government has the power which may or not be
exercised to revoke this right; and what occurs when for whatever reason the right has
expired post determination of application that Australia has no Convention obligation, and
prior to actual removal from the jurisdiction of Australia.
Of course, Section 36(3) does not impose on every applicant an obligation to approach
every Convention country, as there must be an existing right to enter a third country, which
involves some connection, which is usually, though not always, the case where a person
The laws and jurisprudence have developed as a consequence of and response to different
waves of refugee movements. In the late 1980s and early 1990s, an earlier wave of
Indochinese refugees who had temporary residence rights in China were excluded by the
legislative creation of "Safe Third Country" sections in the Act and bilateral agreements.
The ultimate political hypocrisy was applied to the East Timorese refugees who entered
Australia in the 1990s with the Australian Government arguing in the Courts that these
people could claim effective protection in Portugal, even though Australia no longer
recognized Portuguese sovereignty over East Timor.
Most recently, and in what some consider the ultimate irony given the historical
circumstances which led to the Refugee Convention, Jewish refugees from Russia with no
connection in fact to Israel have been found by the Courts to have no right to claim
protection obligations in Australia because under Israel’s Law of Return they can safely
enter and reside there. The exact extent of Australia’s effective protection obligations may
in the near future be clarified by the High Court of Australia as a consequence of litigation
currently there brought by these aggrieved applicants from Russia.
But the issue remains very significant for other refugees seeking entry to Australia as the
complex web of the rules has been used to deny Australian obligations to, amongst others,
Nepalese refugees who can obtain protection in India under a 1950 Treaty between the two
countries, Iraqis who have been found can live safely in Syria, a Colombian student with a
valid student visa to the USA, and recently in the Refugee Review Tribunal, a North
Korean with the right to enter and reside in South Korea, although he had never been there
Prime Minister Howard's election slogan contains some truth. A sovereign State has the
power to permit and deny entry to non-nationals. This right though is subject to the
overriding obligation contained in Article 33 of the Refugee Convention, which itself is
subject to the law relating to Effective Protection. From a practical viewpoint, refugees all
too infrequently are unaware of this important exception and fail to appreciate that whilst
international law will give them protection, they have no right to choose which country
* David Bitel is a Partner of Sydney law firm Parish Patience Immigration, specialising in immigration law and administrative law. He is also President of the Refugee Council of Australia and Secretary-General of the Australian Section of the International Commission of Jurists.
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