Refoulement of the Rohingyas (Part II): Divergence in State Practice Across Jurisdictions

In the first article of this three-part series, we have examined whether customary rule of non-refoulement can be derived from human right treaties in order to engage Malaysia’s international responsibility. In this second part, we will examine the different state practices in search of custom.

I. OVERVIEW

By May 2015, the humanitarian crisis had peaked. The discrimination of the Rakhine Buddhist majority against the Rohingya Muslim minority was morphing into full-blown suppression — denial of citizenship, internal displacement, and detention with abysmal living conditions.[1] ‘I received heart-breaking testimonies from Rohingya people telling me they have only two options,’ reported the UN Special Rapporteur in Myanmar, ‘Stay and die or leave by boat’.[2]
​
However, voyages from the Bay of Bengal to the Straits of Malacca is extremely treacherous. They are often arranged by crime syndicates involved in smuggling and human-trafficking.[3] Aggressive crackdown operations by Thai authorities have left mass graves on both sides of the Thai-Malaysian border.[4]
 
The rising casualties of Rohingyas gripped international headlines.[5] Around 5,000 Rohingyas and Bangladeshis were left stranded at sea, in dire need for food, water, and medical attention.[6] A few unlucky ones perished by starvation, dehydration, disease, drownings and abuse by traffickers aboard the boats.[7]

Initially, the authorities of Malaysia, Thailand and Indonesia were engaged in ‘pushback’ operations i.e. prevent the boats from landing ashore, and escort them out of their territorial waters.[8] Eventually, under heavy international pressure, they relented. Pursuant to a 20 May meeting in Putrajaya, the Malaysian and Indonesian Ministers of Foreign Affairs released a joint statement agreeing to provide ‘temporary shelter’ to the rescued passengers for a year pending repatriation or resettlement in third countries.[9] Throughout May, three boats of 1,800 people grounded in Indonesia, whilst two boats of 1,100 people disembarked in Malaysia.[10]
 
As The Economist vividly recounts the horror seen through the eyes of a survivor:
 
‘Arkham was 12 when he watched men beat his father’s head with a brick and slaughter him with a knife. The family had been walking home from the mosque near their village in Rakhine, Myanmar’s westernmost state, when a stone-throwing mob blocked their path. Their Buddhist neighbours had ordered them to stop practising Islam. The murder was a punishment for clinging to their faith…
 
Arkam risked a lot to reach Malaysia. A little over a year ago he boarded a boat run by traffickers in the Bay of Bengal, with no idea what might follow. They travelled to Thailand, a 12-day sail with inadequate food and water, and occasional beatings from the crew. Of 1,100 people who set sail in two ships, Arkam believes that at least four died in transit, from illness or violence — he saw one man, hysterical, leap into the sea. Once he reached the shore, traffickers held him at a jungle camp until a relative paid them 6,000 ringgit ($1,600). By the time he reached Malaysia — hoisted over the razor wire along its northern border — he had been travelling for a month.’[11]
 
All this happened five years ago in 2015. Indeed, the pushback of Rohingya boats is not a new phenomenon.
 
Today, in 2020, another perfect storm is brewing over the horizon — a humanitarian crisis clashing with a public health crisis. Will the ghastly spectre of COVID-19 trigger a ‘closed door’ policy in South-East Asia? Will there be a happy ending to this tragedy as in 2015? Only time will tell.
 
Meantime, the vexing question still remains — to what extent is Malaysia obliged under international law to accept the Rohingya boat people?
 
In Part I, we explained as to why widespread ratification of the Refugee Convention,[12] ICCPR[13] and CAT[14] per se is insufficient to establish any customary rule on non-refoulement.[15] Instead, custom traditionally recognises the sovereign right of States to expel aliens.
 
In this article, we resort to the correct methodology in the search of custom – the latest state practice and opinio juris of countries worldwide, particularly in Europe, America, and Asia-Pacific. Only then can we truly trace the evolution of custom in the battle between two competing norms i.e. State sovereignty and human rights.

II. STATE PRACTICE AND BELIEF TOWARDS NON-REFOULEMENT 

Despite optimistic human right scholars advocating endlessly for the monumentality of non-refoulement, embrace of such principle diverges starkly across jurisdictions.[16] Whilst some judges bravely hold their own governments accountable to their obligations under international human rights law, there are others who still resort to legal technicalities to hold the doors shut against victims fleeing from persecution.
 
More worryingly, there is consistency in the executive and legislative approaches to managing immigration. Worldwide, States remain reluctant to allow the free entry of refugees into their borders, especially during a pandemic.[17] The right to seek asylum enshrined under the Universal Declaration of Human Rights[18] has been watered down to be almost illusory. As asylum responsibilities place enormous weight onto governments, non-refoulement is a promise that is rarely kept.[19]
 
Time and again, the principle of non-refoulement has been affirmed by regional courts, namely the European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CJEU) and the Inter-American Court of Human Rights (IACtHR). It is rather peculiar that the principle has never been scrutinized before the International Court of Justice (ICJ).[20] Both the Refugee Convention[21] and its 1967 Protocol[22] allow State parties to submit disputes to the ICJ. However, no reference has ever been made – and as Professor Goodwin-Gill rather pessimistically observes — none are anticipated. [23]
 
Our analysis will be primarily focused on case law, for several reasons. First, judicial decisions are subsidiary means of determining the rule of law.[24] Second, domestic legislations are typically formulated in general terms and require further interpretation. Third, it is more effective to examine the legislations and executive acts of States as applied in real-life cases, rather than in abstract.
 
A. Europe 

The European regional judicial system comprises of two Courts, each exercising jurisdiction over different fields of law. The ECtHR oversees observance of Contracting States to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).[25] The CJEU, as the judicial arm of the European Union (EU), interprets EU law and ensures its consistent application by Member States.[26] Both Courts have addressed the principle of non-refoulement.
 
1. The European Court of Human Rights
 
Adjudicating from a human rights perspective, the ECtHR has heard quite a repertoire of cases concerning the obligation of non-refoulement over the years. Similar to the ICCPR (as explained in Part I), there is no explicit provision within the ECHR. Instead, the obligation arises implicitly from two provisions.
 
First, Article 3 on prohibition of torture:
 
'No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
 
Second, Article 4 of Protocol No. 4 to the ECHR on prohibition against collective expulsion of aliens:
 
‘Collective expulsion of aliens is prohibited’.[27]
 
The earliest determination on the scope of the principle of non-refoulement was the landmark 1989 decision of Soering v the United Kingdom concerning extradition.[28] The applicant, a German national, was charged of murder and at risk facing the death row in the US.[29] He challenged the extradition on the basis that the ‘death row phenomenon’ in the US amounted to torture contrary to Article 3 of the ECHR.[30]
 
The Court held that Article 3 would be violated if the extradition places the applicant at a ‘real risk’ of inhuman or degrading treatment.[31] Further, the Court specifically cited the non-refoulement principle embodied in the CAT.[32] Although noting that such principle was not explicitly stated in Article 3, the Court held that extradition with the risk of torture would ‘plainly be contrary to the spirit and intendment of the Article’ and ‘hardly be compatible with the underlying values of the Convention, that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers to’.[33]
 
The ‘real risk’ test was once again applied in Saadi v Italy which concerned a Tunisian national at risk of deportation to Tunisia.[34] The applicant was convicted of criminal conspiracy in Italy[35] and imprisoned for close to five years.[36] His conviction also prescribed deportation to Tunisia upon his imprisonment sentence.[37] While undergoing imprisonment, a Tunisian military court sentenced the applicant in his absence to twenty years’ imprisonment for membership of a terrorist organisation and incitement to terrorism.[38]
 
Upon serving his sentence in Italy, the applicant was brought to a holding centre awaiting the execution of his deportation.[39] The applicant claimed political asylum due to a real risk of being subjected to torture, inhumane or degrading treatment in Tunisia based on his political and religious inclinations.[40] Upon his request for asylum being denied, the applicant sought for an injunction before the ECtHR to suspend or annul his deportation to Tunisia.[41]
 
The ECtHR Grand Chamber reiterated that incumbent within Article 3 is the obligation not to expel any person facing the real risk of being subjected to torture in the receiving country.[42] This obligation cannot be balanced against the risk of danger nor national security which the applicant supposedly posed against the community.[43] This is because the ambit of protection under Article 3 of the ECHR is wider than the non-refoulement provision under the Refugee Convention[44] which provides for the exception that a refugee posing such risk may be returned.[45]
 
The Grand Chamber noted that the Tunisian government refused to provide assurance to Italy against any ill-treatment to the applicant.[46] Instead, they merely stated ‘Tunisia had acceded to the relevant international treaties and conventions’.[47] In light of contemporary reports by reliable sources revealing a risk of ill-treatment in Tunisia,[48] the Grand Chamber held that such mere accession are by themselves insufficient to ameliorate such risk.[49]
 
Hence, it is well-established in the ECtHR’s jurisprudence that deportation of persons facing a real risk of torture at the receiving State violates the non-derogable prohibition against torture or ill-treatment. But does such protection extend to persons fleeing from risk of torture intercepted at sea before even landing on European soil?
 
This question was answered in the groundbreaking 2012 decision of Hirsi Jamaa v Italy (Hirsi Jamaa).[50] Here, the Grand Chamber held that Italy’s pushback operations violated both Article 3 of the ECHR and Article 4 of Protocol No. 4.
 
The applicants were migrants of Somalian and Eritrean descent travelling from Libya in hope of reaching Italian shores.[51] As the applicants arrived within the Maltese Search and Rescue region, Italian coast guards intercepted their vessels and transferred them onto Italian military ships.[52] These ships forcibly brought them back to Tripoli, Libya.[53] Such return, the applicants argued, put them at risk of inhuman or degrading treatment by Libyan authorities, and possible repatriation to their homelands.[54] As the applicants were not identified throughout the voyage,[55] they further alleged that their return amounted to a ‘collective expulsion’ prohibited under Article 4 of the Protocol.[56] At a press conference, the Italian Minister of the Interior explained that such operation was pursuant to a bilateral agreement with Libya in 2009 to stem clandestine immigration.[57]
 
The ECtHR Grand Chamber delivered an impressive multifaceted judgement covering the issue of extraterritoriality, non-refoulement, and procedural safeguards.
 
First, the Grand Chamber held that the interdiction fell within the jurisdiction of Italy under Article 1 of the ECHR.[58] The Grand Chamber noted that throughout the operation, ‘the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities’.[59] Although the operation was conducted on the high seas, the migrants were on board Italian flagged ships (de jure control)[60] crewed by Italian personnel (de facto control).[61] While acknowledging that jurisdiction is primarily territorial in nature,[62] the Grand Chamber nonetheless found that Italy’s extraterritorial exercise of jurisdiction triggered their State responsibility. This was reminiscent of its previous decision in Medvedyev v France whereby the interception and capture of the vessel Winner by a French warship in international waters similarly engaged France’s international responsibility.[63]
 
Secondly, the Grand Chamber proceeded to examine the alleged risks of ill-treatment under Article 3. An assessment was first made with regards to the expulsion to Libya.[64] After taking into account various reports of international organisations such as Amnesty International,[65] Human Rights Watch[66] and the United Nations High Commissioner for Refugees[67] the Grand Chamber concluded that the return to Libya did pose a real risk of ill-treatment.[68] The fact that asylum-seekers were regularly arrested and placed in detention under inhuman conditions was well known and verified by multiple credible sources.[69] The mere assurance of compliance to international human rights law prescribed in the Italy-Libya agreement did not relieve Italy’s obligation.[70]
 
Further, the breach of Article 3 extended to the risk of the applicants being repatriated to Somalia and Eritrea by Libyan authorities.[71] The Grand Chamber noted that Somalia and Eritrea posed the risk of torture and serious levels of violence.[72] More pertinently, Libya was a non-signatory to the Refugee Convention.[73] Hence, there was a real risk of repatriation to Somalia and Eritrea.
 
Thirdly, on the prohibition of collective expulsion, the Grand Chamber noted that ‘the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority’.[74] The Grand Chamber observed that the applicants aboard the Italian ships were never examined individually, nor were the Italian crew trained to conduct individual interviews.[75] Such lack of individual examination constituted a collective expulsion in violation of Article 4 of the Protocol No. 4.[76]
 
The Grand Chamber’s decision was widely lauded by scholars and human rights activists.[77] The decision had extended the principle of non-refoulement beyond the conventional territorial limits and breathed new life into the provisions of the ECHR so as to not render its wordings ‘theoretical and illusory’.[78]
 
However, the ECtHR’s trajectory towards the progressive development of human rights law is not always smooth sailing. Just recently in February 2020, the Grand Chamber dropped an unexpected anchor in ND and NT v Spain.[79]
 
The case concerned Spain’s practice of returning asylum seekers crossing into Melilla, a Spanish enclave on the northwest coast of Africa separated by a fenced border.[80] As such practice was analogous to Italy’s pushback operations at sea in Hirsi Jamaa (albeit on land), many had anticipated a similar finding of refoulement.[81] However, this time, the Court’s sympathies did not lie with the asylum-seekers.
 
The applicants had attempted to cross the elaborate fences, and even successfully landed in the Melilla side.[82] Immediately, they were stopped by the Spanish Guardia Civilia who promptly handcuffed and returned them to the Moroccan authorities.[83] The applicants claimed that their rights under Article 3 of the ECHR and Article 4 of Protocol No. 4 had been violated.[84]
 
The Grand Chamber held that the claim under Article 3 was inadmissible as a return to Morocco did not pose any risk of ill-treatment.[85] Whilst the Grand Chamber did find that the return amounted to expulsion,[86] such expulsion nonetheless was not ‘collective’ and therefore lawful.[87]
 
The Grand Chamber’s finding that non-admission or rejection at border amounted to expulsion irrespective of the lawfulness of the alien’s entry is noteworthy.[88] The Grand Chamber adopted the approach of the International Law Commission in its Draft Articles on the Expulsion of Aliens,[89] whereby the ‘non-admission’ of refugees is equivalent to their ‘return (refoulement)’.[90] Emphasising the connection between Article 4 of Protocol No. 4 and the prohibition of non-refoulement, the Grand Chamber held that any person coming within the State’s jurisdiction pending protection under the Protocol No. 4 or Article 3 of the ECHR should be regarded as a refugee.[91]
 
However, the Grand Chamber’s subsequent finding that the expulsion of the applicants was not ‘collective’ attracts controversy. An expulsion is deemed to be ‘collective’ if a group of aliens are compelled to leave a country without sufficient examination of the circumstances of each alien being conducted.[92] This requirement of individual interviews is satisfied so long as there exists an avenue for each alien to submit arguments against their expulsion.[93] In short, the right to an individual interview is not guaranteed in all circumstances.[94]
 
The Grand Chamber found that the applicants’ deprivation of the right to individual examinations resulted from their own culpable conduct,[95] particularly their act of jumping over the fences in large numbers and with force, and bypassing the available avenues for legal entry in Melilla.[96] For instance, the Grand Chamber noted, the applicants could have sought admission ‘either by applying for a visa, or by applying for international protection, in particular at the Beni Enzar border crossing point, but also at Spain’s diplomatic and consular representations in their countries of origin or transit, or in else in Morocco’.[97]
 
The Grand Chamber then examined whether there were cogent reasons for the applicants’ failure to avail to such legal avenues.[98] Arguments were made by third party observers that gaining access to the crossing point in Beni Enzar was practically impossible or very difficult for Sub-Saharan Africans staying in Morocco.[99] Nonetheless, the Grand Chamber noted that the applicants only alleged approaching Beni Enzar and being ‘chased by Moroccan officers’ in the late stages of the hearing in the Grand Chamber (and not raised in previous hearings).[100] The Grand Chamber further noted that any alleged difficulties posed by the Moroccan officers were not within the responsibilities of the Spanish government.[101]
 
Finally, upon concluding that there was no violation of Article 4 of Protocol No. 4,[102] the Grand Chamber took pains to emphasise that such finding does not question the broad consensus within the international community regarding States’ obligation to comply with human rights law in the protection of their borders, particularly the obligation of non-refoulement.[103]
 
Overall, the ECtHR’s jurisprudence on the principle of non-refoulment has been rather progressive and positive thus far. It remains to be seen whether the Grand Chamber will continue to build upon Hirsi Jamaa, or has instead drawn a line in the sand with ND and NT to halt further expansion.
 
2. Court of Justice of the European Union
 
Several recent decisions of the CJEU have confirmed the widespread protection of non-refoulement within the EU regime. One prime example is Joined Cases M, X and X which posed the question of the scope of protection of the non-refoulement provisions encapsulated within the Refugee Directive 2011/95.[104]
 
The contentious provisions were Article 21(2), read in light of Article 14(4), (5) and (6). Essentially, Article 21(2) permits the refoulement of refugees should they constitute danger to the security of any European nation, or if they are convicted of a serious crime – somewhat analogous to the exceptions prescribed in Article 33(2) of the Refugee Convention. Articles 14(4) and (5) allow EU States to refuse or revoke the refugee status of such dangerous persons or criminals. Article 14(6) explains that such dangerous persons retain certain rights as prescribed in the Refugee Convention.
 
The question before the CJEU was whether such provisions were consistent with the Refugee Convention.[105]
 
The CJEU answered in the affirmative.[106] This is because the protection granted by the Directive goes beyond the protection granted by the Refugee Convention. Whilst States are permitted to revoke refugee status, the effect of such revocation is not that the person is no longer a refugee.[107] Rather, he remains a refugee and enjoys minimum rights under the Refugee Convention.[108] All that such person loses are the additional rights granted under refugee status in the Directive (e.g. residence permit).[109] Further, the absolute prohibition of torture enshrined in Article 4 of the Charter of the EU prevents the removal, expulsion or extradition of aliens facing a risk of torture.[110]
 
The generous protection afforded to refugees in the EU further extends to their transfer to another Member State (and not just outside EU). This issue arises under the Dublin II Regulation[111] (now replaced by Dublin III)[112] which assigns Member States responsibility for the examination of asylum applications within the EU, and allows asylum seekers to be moved between States during their application.  
 
In NS v UK and ME v Ireland,[113] the applicants objected to their transfer from the UK and Ireland to Greece on the basis that Greece suffered from a systemic deficiency in the asylum procedure and reception conditions of asylum seekers.[114]
 
The CJEU held that Article 4 of the Charter of the EU prevents Member States from conclusively presuming that other Member States would observe their human rights obligations.[115] Concomitantly, Member States are prevented from removing asylum seekers to such States with known existing flaws in the asylum system.[116] In short, such transfer may amount to refoulement of asylum seekers.
 
In a nutshell, as reflected in the jurisprudence of the ECtHR and the CJEU, European States are largely supportive of the principle of non-refoulement.
 
B. Americas

Similar to the EU, the Americas regional human rights regime encompassing both North and South America takes an expansive approach to the prohibition of non-refoulement.
 
Under the American Convention on Human Rights (ACHR),[117] Article 22(8) on freedom of movement and residence provides:
 
’In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.’
 
Further, Article 22(7) of the ACHR provides:
 
‘Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes.’
 
The scope of such provisions were addressed by the IACtHR in Pacheco Tineo Family v Bolivia.[118] The applicants, a family of Peruvian origin, was deported to Peru despite seeking asylum in Bolivia.[119] The deportation was done without any examination of the applicant’s individual circumstances.
 
The Court held that the deportation amounted to refoulement in breach of Article 22(8).[120] Further, the Court clarified on the wide ambit of protection granted to asylum seekers under the inter-American system by interpreting the Refugee Convention as implicitly incorporating the right to seek and enjoy asylum as enshrined in Article 14(1) of the 1948 Universal Declaration of Human Right and Article 22 of the ACHR.[121]
 
The Court affirmed the customary status of the prohibition of non-refoulement ‘owing to the complementarity that exists in the application of international refugee law and international human rights law, the prohibition of refoulement constitutes the cornerstone of the international protection of refugees or asylees and of those requesting asylum’.[122]
 
Moreover, integrated in the Latin American system is the Cartagena Declaration on Refugees, which widened the definition of refugees beyond the classes recognized under the Refugee Convention.[123] Such definition has been widely incorporated in the legislations of Latin American States.[124]
 
In short, the Americas regime affords even greater protection to asylum-seekers than the EU.
 
C. United Kingdom

Moving to national shores, the House of Lords decision of R v Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al.[125] (Roma Rights) gives an interesting perspective to the scope of the principle of non-refoulement under domestic legislation modelled after the Refugee Convention.
 
In 2000, the UK saw a flood of asylum seekers of Romani origin into the country, a community who have long faced systemic discrimination in Europe.[126] To stem the flow, the UK, in collaboration with the Czech Republic, introduced a pre-entry immigration clearance control via a British immigration post at Prague airport to screen applicants.[127] The British officers were not obliged to consider any application for leave to enter the United Kingdom by non-nationals.[128] Reports show that ‘almost 90% of Roma were refused leave to enter and only 0.2% of non-Roma were refused leave to enter’.[129]
 
The applicants were stopped by British officers at the airport from boarding a flight to the UK.[130] They challenged such measure on the basis on asylum protection and racial discrimination.[131] The House of Lords by majority found for the applicants on the discrimination point, but not the asylum point.
 
The House of Lords rested its rationale primarily on the fact that the applicants did not fall within the definition of ‘refugee’ under the Refugee Convention since they were not outside the territory of their nationality (i.e. within the Prague airport) at the time of their rejection of entry. This was neatly summarized by Lord Bigham who gave the leading majority judgment on the asylum issue:
 
‘Thirdly, the Convention was exclusively directed to those who are “outside the country” of their nationality or, in the case of stateless persons, “outside the country” of their former habitual residence. It is only to persons meeting that definition, expressed in article 1A(2) of the Convention, that the Convention applies at all, unless they have been considered to be refugees under earlier arrangements. Fourthly, the Convention is directed towards those who are within the receiving state. Fifthly, the French verb refouler and the French noun refoulement are, in article 33, the subject of a stipulative definition: they must be understood as having the meaning of the English verb and noun “return”’.[132]
 
On the last point, Lord Hope agreed with the more restrictive definition of ‘refouler’ adopted by the US Supreme Court in Sale (which will be further elucidated below):
 
‘The materials quoted… provide ample support for the proposition that the word “return” in article 33 is not an exact synonym for the word “refouler.” It refers to a refugee who is within the territory but is not yet resident there – to a person who has crossed the border and is on the threshold of initial entry… [T]he prohibition of non-refoulement may only be invoked in respect of persons who are already present in the territory of the contracting state, and that article 33 does not oblige it to admit any person who has not set foot there’.[133]
 
Moreover, the House of Lords stopped short in confirming the customary status of the principle of non-refoulement. In rather ambiguous terms, Lord Bingham opined:
 
‘There would appear to be general acceptance of the principle that a person who leaves the state of his nationality and applies to the authorities of another state for asylum, whether at the frontier of the second state or from within it, should not be rejected or returned to the first state without appropriate inquiry into the persecution of which he claims to have a well-founded fear. But that principle, even if one of customary international law, cannot avail the appellants, who have not left the Czech Republic nor presented themselves, save in a highly metaphorical sense, at the frontier of the United Kingdom’.[134]
 
After expressing deep skepticism on the works of international law scholars and noting the absence of legislation and judicial decisions, Lord Bingham emphatically concluded:
‘Have the states in practice observed such a rule? It seems to me clear that they have not’.[135]
 
The judgement in Roma Rights is pertinent on three counts. First, that persons who have yet to leave their country of nationality do not qualify as ‘refugee’. Second, that the prohibition of non-refoulement does not apply to States’ actions outside their territory. Third, that pre-entry immigration controls — akin to visa schemes — do not amount to refoulement.
 
On a positive note, the UK does accept that the prohibition of non-refoulement extends to third countries where refugees run the further risk of being repatriated to their home of persecution. This aligns with the ECtHR’s analysis in Hirsi Jamaa where the applicants were at risk of being repatriated by the Libyan authorities to Somalia and Eritrea.
 
In Bugdaycay v Secretary of State for the Home Department. M was an asylum seeker of Ugandan nationality who entered the UK as a visitor from Kenya.[136] He had been living in Kenya as a political asylee, whose license was approaching expiry.[137] The question before the House of Lords was whether the return of M to Kenya, where he bore the risk of repatriation to Uganda, violated the principle of non-refoulement.[138]
 
The evidence indicated that Kenya, despite being a signatory of the Refugee Convention, regularly repatriated asylum seekers to Uganda.[139] The House of Lords held that the return of M to Kenya would be as much an act of refoulement as if he was to be sent directly to Uganda: ‘the one course would effect indirectly, the other directly, the prohibited result, ie his return ‘to the frontiers of territories where his life or freedom would be threatened’.[140]
 
In sum, the state practice of the UK does not yet subscribe to the liberal expansion of the principle of non-refoulement as adopted by the regional human rights courts.
 
D. United States of America

The US Supreme Court judgement of Sale v Haitian Centers Council (Sale)[141] has left a dark mark on the scope of the prohibition of non-refoulement.
 
In 1991, widespread violence stemming from the military coup d’état in Haiti prompted widespread exodus of Haitians to the US shores, often in unseaworthy vessels.[142] In 1992, President Bush promulgated Executive Order No. 12807 which directed the US Coast Guards to intercept Haitian boats on the high seas and return those on board to Haiti without any screening.[143] This is a step beyond Executive Order No. 12324 promulgated by President Reagan in 1981 which involved screening processes on board the vessels or at the US Naval Base in Guatanamo, Cuba.[144]
 
A Haitian service organisation challenged the legality of Executive Order No. 12807 on two bases. The first being Section 243(h) of the Immigration and Nationality Act 1952 which prohibits the deportation or return any alien whose life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion. The second being Article 33 of the Refugee Convention itself.
 
The Supreme Court, by 8-1 majority (Blackmun J dissenting), held that the interdiction on the high seas did not breach both provisions.
 
First, the Supreme Court held that Section 243(h) did not envisage any extraterritorial protection against deportations or returns despite the 1980 amendment removing the term ‘within the United States’.[145] The Court explained that the removal was merely intended to clarify the long-standing distinction between two legal classes of aliens i.e. by extending the protection of the provision to both classes.[146] Such extension, however, does not remove the territorial limitation of the entire statute since ‘not a scintilla of evidence of such an intent can be found in the legislative history’.[147] Hence, the Executive Order fell outside the scope of Section 234(h).
 
Second, the Supreme Court found that the scope of non-refoulement under Article 33 of the Refugee Convention similarly did not have an extraterritorial application. The Supreme Court compared the dynamics between Article 33(1) and Article 33(2).[148] Since the latter provide that a refugee ‘present in a country’ is not entitled for protection should they pose danger to the security of the country, the Supreme Court reasoned that Article 33(1) must necessarily be limited to such refugees.[149] To decide otherwise would result in ‘an absurd anomaly’ whereby ‘no nation could invoke the second paragraph's exception with respect to an alien… intercepted on the high seas [due to being] in no country at all’.[150]
 
Further, the Supreme Court undertook a convoluted comparative analysis between the English word ‘return’ and the French word ‘refouler’.[151] Both words are not synonymous because two English-French dictionaries did not indicate ‘refouler’ as the direct French translation of ‘return’.[152] Rather, the French word ‘refouler’ referred to the English word ‘expel’.[153] Since 'expulsion' refers to ‘a refugee already admitted into a country' and 'return' refers to ‘a refugee already within the territory but not yet resident there', the Supreme Court concluded that Article 33 ‘was not intended to govern parties' conduct outside of their national borders’.[154]
 
Lastly, an analysis of the negotiating history of the Refugee Convention (travaux préparatoires) evinced the drafters’ understanding that the prohibition of non-refoulement only applied to refugees already within the territory.[155]
 
Ultimately, the Supreme Court concluded that Article 33 of the Refugee Convention did not prohibit pushback operations of refugees on the high seas.[156] Hence, it was well within the power of the President to ‘establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores’.[157]
 
It is noteworthy that the case was subsequently referred to the Inter-American Commission of Human Rights which sided with the dissenting opinion of Blackmun J.[158] Nevertheless, no matter how well-reasoned, the Commission’s opinion cannot overturn the Supreme Court’s majority decision.
 
Hence, the position in Sale still reflects the prevailing state practice and opinio juris of the US as to the non-applicability of the principle of non-refoulement on the high seas.
 
E. Australia

Despite being rather isolated and further removed from the regular pathways of global migration, Australia has received a fair share of asylum-seekers at its shores.
 
On 26 September 2001, the rescue of 433 migrants by Norwegian vessel MV Tampa sparked controversy and reform in the Australian asylum system.[159] MV Tampa was directed by the Australian government to rescue the migrants from a rickety fishing boat in the Indian Ocean, about 140 kilometers off Christmas Island. The captain was further directed to disembark in Indonesia. The migrants, who intended to reach Australian shores in hope of applying for refugee protection, threatened suicide should the captain change coursed to Indonesia. Under such duress, the captain headed towards Christmas Island. This sparked a week-long standoff between the stranded migrants and the Australian government.
 
In Ruddock v Vadarlis,[160] the Federal Court noted that Australia’s obligations under the Refugee Convention merely extended to the prohibition of non-refoulement of refugees to territories where they risk a threat to life and freedom.[161] There was no obligation under international law for coastal states to resettle refugees in their own territory.[162] At most, customary international law merely obliged coastal states to rescue persons in distress at sea (which will be the subject of our analysis in Part III).
 
This incident of MV Tampa was the catalyst to Australia’s hardline asylum policy. Almost immediately, the Australian Parliament passed laws excising certain Australian territories, including Christmas Island where MV Tampa was docked, out of the ‘migration zone’.[163] This effectively meant that asylum seekers arriving at these territories are not able to apply for visa upon arrival. Instead, under the Pacific Solution policy, they would be physically transferred to offshore facilities in Nauru or Manus Island in Papua New Guinea (where their asylum claims will be processed).[164] Many observers had criticised such facilities as having inadequate living conditions, and exposing asylum-seekers to ‘severe abuse, inhumane treatment and neglect’.[165] The operation was suspended in 2008, only to be restarted in 2012 by the Gillard government.[166]
 
Till today, Australia firmly maintains that such policies are consistent with their international obligations under the Refugees Convention.[167]
 
F. New Zealand

The Supreme Court of New Zealand in Zaoui v Attorney General (No 2) affirmed that ‘the prohibition of refoulement… is generally thought to be part of customary international law.’[168]
 
This welcome embrace resonates with the conduct of New Zealand in the MV Tampa incident volunteering to process the asylum claims of a portion of the migrants.[169] In the past, the government has prevented entry of asylum seekers by invoking the State’s inherent right to regulate the entry of aliens.[170] Nevertheless, in stark contract of their bigger neighbour, the recent state practice of New Zealand indicates a softer stance towards the protection of refugees.
 
G. Hong Kong

A similar bold recognition of the customary status of the principle of non-refoulement was made by the Court of Appeal of Hong Kong in C v Director of Immigration.[171] This is despite Hong Kong not even being signatory to the Refugees Convention.[172]
 
Although noting that the House of Lords in Roma Rights made no definitive pronouncement, the Court of Appeal was nonetheless swayed by the writings of eminent publicists such as Lauterpacht and Bethlehem, affirming that the principle had indeed crystalised into custom.[173]
 
Peculiarly, the Court of Appeal even considered that there was sufficient evidence to give rise to regional custom in Asia.[174] In response to the government’s contention that the majority of non-signatories of the Refugee Convention were actually from Asia, the Court of Appeal opined:
 
‘In my view what is important is that since the RC (which is now in its 50th year), no state has explicitly asserted that it is entitled, solely as a matter of legal right in public international law, to return genuine refugees to face a well-founded fear of persecution, and has openly done so. Clearly the RC has had an impact, even on non-signatory States, and has helped to create a CIL of non-refoulement of refugees.’[175]
 
With due respect, the Court of Appeal has erred in reversing the burden of proof (as previously explained in Part I). Since custom traditionally recognises the right of States to expel aliens, the burden lies with asylum-seekers to prove that such right is limited by the principle of non-refoulement (and not on the government to prove its non-existence i.e. to prove a negative).
 
In any event, the government emerged victorious. The Court of Appeal proceeded to find that the local Ordinance vested unfettered discretion on the Director for Immigration to deport aliens, and overrides the customary principle of non-refoulement incorporated into Hong Kong law.[176]
 
Such decision is both heartening and disappointing in equal respects — boldly taking one giant leap forward, only to retreat two steps backwards.

III. PRELIMINARY CONCLUSION
​ 
The survey of state practice above demonstrates that while States recognise the obligation of non-refoulement as a general rule, they nonetheless take divergent approaches in determining the specific content of such obligation. Particularly, many governments still balk at extending the sphere of protection extraterritorially towards maritime interdictions. Such uncertainties make it difficult to conclude there is a consistent line of state practice coupled with opinio juris to formulate a clear rule of non-refoulement under customary international law.
 
The joint efforts of Malaysia, Thailand and Indonesia coming to the Rohingyas’ rescue in 2015 is truly laudable. Nonetheless, it is rather optimistic to construe this isolated incident as an unequivocal recognition of the principle of non-refoulement.
 
First, the term of ‘obligations under international law… including the provision of humanitarian assistance to the irregular migrants’ in their joint statement is rather vague and ambiguous.[177] Such choice of words seems more in step with other treaty obligations, particularly the duty of search and rescue (as will be explained in Part III). Second, the mere promise of ‘temporary shelter’ falls short of the level of protection guaranteed under the Refugee Convention. Third, such promise is conditional upon the international community providing support and financial assistance, and the repatriation or resettlement of the migrants in third countries within a year.
 
Drawing an analogy with the EU-Mediterranean migrant crisis, such arrangement puts Association of Southeast Asian Nations (ASEAN) more in the position of temporary transit points (e.g. Morocco, Turkey and Libya), rather than final asylum destinations (e.g. Italy, Spain and Greece). In Part III, we will explain how ASEAN can straddle between both responsibilities, given enough support from other developed States.
 
Ultimately, the solution to the Rohingya refugee crisis lies not in each State’s compliance to the obligation of non-refoulement, but the cooperation of the international community as a whole.

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Written by Mr Raphael Kok, an alumnus and mooting coach of University of Malaya and Caysseny Boonsiri, a third year student of University of Malaya. 
​
Edited by Law Chi Kay​.
​
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.

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Footnotes:

[1] Human Rights Council, ‘Report of the Special Rapporteur on the situation of human rights in Myanmar’ UN Doc A/HRC/28/72 (23 March 2015), [39]-[42].

[2] See footnote 1, [42]; UN rights expert urges Myanmar authorities to address signs of backtracking. (18 March 2015). UN News. Retrieved from <https://news.un.org/en/story/2015/03/493812-un-rights-expert-urges-myanmar-authorities-address-signs-backtracking>.

[3] Amnesty International, ‘Deadly Journeys: The Refugee and Trafficking Crisis in Southeast Asia’ (October 2015), 9.

[4] See footnote 3.

[5] Pitman, T. & Gecker, J. (25 May 2015). Malaysia migrant graves reveal 139 human skeletons at site where Rohingya Muslims ‘Kept by traffickers. The Independent. Retrieved from <http://www.independent.co.uk/news/world/asia/malaysia-migrant-graves-reveal-139-human-skeletons-at-site-where-rohingya-muslims-kept-by-10273915.>; IOM Appeals for USD 26 million for Migrants in SE Asian Boat Crisis. International Organization for Migration. (26 May 2015). Retrieved from <http://www.iom.int/news/iom-appeals-usd-26-million-migrants-se-asian-boat-crisis>.

[6] UN High Commissioner for Refugees (UNHCR), South-east Asia: Mixed Maritime Movements, (June 2015), 1 Retrieved from < https://www.refworld.org/docid/55e6c1994.html>.

[7] See footnote 5.

[8] See footnote 3, 10.

[9] Joint Statement on the Asian Migrant Crisis. New York Times. (20 May 2015). Retrieved from < https://www.nytimes.com/interactive/2015/05/20/world/asia/document-malaysia-indonesia-thailand-statement-on-asia-migrants-crisis.html>.

[10] See footnote 6, 6.

[11] The most persecuted people on Earth?. The Economist. (15 June 2015). Retrieved from <https://www.economist.com/asia/2015/06/13/the-most-persecuted-people-on-earth>.

[12] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (‘Refugee Convention’).

[13] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (‘ICCPR’).

[14] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 July 1987) 1465 UNTS 85 (‘CAT’).

[15] Raphael Kok and Caysseny Boonsiri, ‘Refoulement of the Rohingyas (Part I): The Search for Custom in Human Rights Treaties. 

[16] James C. Hathaway, The Rights of Refugees under International Law (Cambridge, UK: Cambridge University Press, 2005) 280

[17] During virus crisis states should ensure rescue at sea and allow safe disembarkation. (2020). Retrieved from <https://www.coe.int/en/web/portal/-/during-virus-crisis-states-should-ensure-rescue-at-sea-and-allow-safe-disembarkation.>; Amnesty.org. (2020). COVID-19 is no excuse to sacrifice Rohingya lives at sea. Retrieved from <https://www.amnesty.org/en/latest/news/2020/04/covid-no-excuse-sacrifice-lives-more-rohingya-seek-safety-boat/>.

[18] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217(III)A, art 14(1).

[19] Goodwin-Gill, “The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement” Fondation Philippe Wiener – Maurice Anspach Chaire W. J. Ganshof van der Meersch, 16 February 2011.

[20] Skordas, A. (2018). The Missing Link in Migration Governance: An Advisory Opinion by the International Court of Justice. Ejiltalk.org. Retrieved from <https://www.ejiltalk.org/the-missing-link-in-migration-governance-an-advisory-opinion-by-the-international-court-of-justice/>.

[21] See footnote 12, art 38.

[22] Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267, art IV.

[23] Guy S. Goodwin-Gill. ‘The Search for the one, true meaning…’ in Guy S. Goodwin-Gill and Hélène Lambert
(ed). The Limits of Transnational law: Refugee law, Policy Harmonization and Judicial Dialogue in the
European Union (Cambridge University Press, 2010), 207.

[24] Statute of the International Court of Justice (adopted 1 December 1949, entered into force 26 June 1945) 33 UNTS 993, art 38(1)(d).

[25] European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953).

[26] European Union. Court of Justice of the European Union (CJEU) | European Union. Retrieved from <https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en>. Site accessed on 19 May 2020.

[27] Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto (adopted 16 September 1963, entered into force 2 May 1968), art 4.

[28] Soering v United Kingdom App no. 14038/88 (7 July 1989).

[29] See footnote 28, [13].

[30] See footnote 28, [76].

[31] See footnote 28, [88].

[32] See footnote 28, [88].

[33] See footnote 28, [88].

[34] Saadi v. Italy, App no. 37201/06 (28 February 2008) [3].

[35] See footnote 34, [14].

[36] See footnote 34, [31].

[37] See footnote 34, [15].

[38] See footnote 34, [29].

[39] See footnote 34, [34].

[40] See footnote 34, [35].

[41] See footnote 34, [39].

[42] See footnote 34, [138].

[43] See footnote 34, [139].

[44] See footnote 12, art 33(2).

[45] See footnote 34, [138].

[46] See footnote 34, [147].

[47] See footnote 46.

[48] Amnesty International. (23 May 2006). Amnesty International Report 2006 – Tunisia. Retrieved from: <https://www.refworld.org/docid/447ff7bc7>. Site accessed on 15 May 2020; Human Rights Watch. (11 January 2007). Human Rights Watch World Report 2007 – Tunisia. Retrieved from <https://www.refworld.org/docid/45aca2a82>. Site accessed on 15 May 2020.

[49] See footnote 34, [147].

[50] Hirsi Jamaa and Others v Italy App no. 27765/09 (23 February 2012).

[51] See footnote 50, [9].

[52] See footnote 50, [10]-[11].

[53] See footnote 50, [12].

[54] See footnote 50, [83].

[55] See footnote 50, [11].

[56] See footnote 50, [163].

[57] See footnote 50, [13].

[58] See footnote 50, [82].

[59] See footnote 50, [81].

[60] See footnote 50, [77].

[61] See footnote 50, [81].

[62] See footnote 50, [72]

[63] Medvedyev and Others v France App no. 3394/03 (29 March 2010) [64]-[67].

[64] See footnote 50, [115].

[65] See footnote 50, [40]; Amnesty International. (2009). Libya: Amnesty International Completes First Fact-finding Visit in Over Five Years. Retrieved from <https://www.amnesty.org/download/Documents/48000/mde190032009eng.pdf.>.

[66] See footnote 50, [37]; Human Rights Watch. (21 September 2009). Pushed Back, Pushed Around: Italy's Forced Return of Boat Migrants and Asylum Seekers, Libya's Mistreatment of Migrants and Asylum Seekers. Retrieved from <https://www.refworld.org/docid/4ab87f022>. Site accessed on 15 May 2020.

[67] See footnote 50, [33]; UNHCR. (2009). UNHCR deeply concerned over returns from Italy to Libya. Retrieved from <https://www.unhcr.org/en-my/news/press/2009/5/4a02d4546/unhcr-deeply-concerned-returns-italy-libya.>.

[68] See footnote 50, [138].

[69] See footnote 50, [131].

[70] See footnote 50, [129].

[71] See footnote 50, [158].

[72] See footnote 50, [150].

[73] See footnote 50, [153].

[74] See footnote 50, [177].

[75] See footnote 50, [185].

[76] See footnote 50, [186].

[77] Amnesty International. (2012). Italy: ‘Historic’ European Court judgment upholds migrants’ rights. Retrieved from <https://www.amnesty.org/en/latest/news/2012/02/italy-historic-european-court-judgment-upholds-migrants-rights/>. Site accessed on 19 May 2020; Irini Papanicolopulu. (2013). The American Journal of International Law, 107(2), 417-423 at 420; Hirsi Jamaa v. Italy.  

[78] Airey v Ireland App no. 6289/73 (9 October 1979) [24]; Leyla Şahin v Turkey App no. 44774/98 (10 November 2005) [136].

[79] N.D. and N.T. v Spain, App no. 8675/15 and 8697/15 (13 February 2020).

[80] See footnote 79, [15]-[18].

[81] Pijnenburg, A., (2017). “Is N.D. and N.T. v. Spain the new Hirsi?” Oct 03, 2017. (EJIL Talk!). Retrieved from <https://www.ejiltalk.org/is-n-d-and-n-t-v-spain-the-new-hirsi/>.

[82] See footnote 79, [25].

[83] See footnote 79, [25].

[84] See footnote 79, [3].

[85] See footnote 79, [128].

[86] See footnote 79, [191].

[87] See footnote 79, [281].

[88] See footnote 79, [185].

[89] International Law Commission, Draft Articles to the expulsion of aliens, with commentaries <https://legal.un.org/ilc/texts/instruments/english/commentaries/9_12_2014.pdf> art 2, commentary [5].

[90] See footnote 79, [186].

[91] See footnote 79, [186].

[92] See footnote 79, [193].

[93] See footnote 79, [199].

[94] See footnote 79, [199].

[95] See footnote 79, [200].

[96] See footnote 79, [201].

[97] See footnote 79, [212].

[98] See footnote 79, [218].

[99] See footnote 79, [142].

[100] See footnote 79, [220].

[101] See footnote 79, [221].

[102] See footnote 79, [231].

[103] See footnote 79, [232].

[104] Joined Cases C‑391/16, C‑77/17 and C‑78/17 (14 April 2019) [1].

[105] See footnote 104, [76].

[106] See footnote 104, [112].

[107] See footnote 104, [97].

[108] See footnote 104, [99].

[109] See footnote 104, [106].

[110] See footnote 104, [94].

[111] EU ‘Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national’, Official Journal of the European Union L 50/1 of 25 February 2003

[112] EU ‘Council Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person’, Official Journal of the European Union L 180/31-180/59 of 29 June 2013.

[113] Joined Cases C-411-10 and C-493-10 (21 December 2011).

[114] See footnote 113, [40] and [52].

[115] See footnote 113, [99].

[116] See footnote 113, [106].

[117] American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978).

[118] The Pacheco Tineo Family v Plurinational State of Bolivia (Series C No. 272, Judgement of 25 November 2013).

[119] See footnote 118, [94].

[120] See footnote 118, [189].

[121] See footnote 118, [139].

[122] See footnote 118, [151].

[123] Cartagena Declaration of Refugees (adopted 22 November 1984).

[124] See footnote 118, [139].

[125] European Roma Rights Centre and others v Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees intervening) [2005] 1 All ER 527.

[126] See footnote 125, 535 (Lord Bingham).

[127] See footnote 125, 535 (Lord Bingham).

[128] See footnote 125, 536 (Lord Bingham).

[129] See footnote 125, 555 (Lord Stein).

[130] See footnote 125, 534 (Lord Bingham).

[131] See footnote 125, 534 (Lord Bingham).

[132] See footnote 125, 542.

[133] See footnote 125, 567.

[134] See footnote 125, 551.

[135] See footnote 125, 551.

[136] Bugdaycay v Secretary of State for the Home Department and related appeals [1987] 1 All ER 940, 943 (Lord Bridge).

[137] See footnote 136, 943.

[138] See footnote 136, 952.

[139] See footnote 136, 953.

[140] See footnote 136, 952.

[141] Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v Haitian Centers Council, Inc., et al., 509 U.S. 155.

[142] See footnote 141, 163.

[143] See footnote 141, 166.

[144] See footnote 141, 160.

[145] See footnote 141, 175.

[146] See footnote 141, 174.

[147] See footnote 141, 176.

[148] See footnote 141, 179.

[149] See footnote 141, 180.

[150] See footnote 141, 180.

[151] See footnote 141, 180.

[152] See footnote 141, 180.

[153] See footnote 141, 181.

[154] See footnote 141, 182.

[155] See footnote 141, 186.

[156] See footnote 141, 187.

[157] See footnote 141, 187.

[158] The Haitian Centre for Human Rights et al. v United States, Case 10.675 (IACtHR, 13 March 1997).

[159] Ruddock and Others v Vadarlis and Others (2001) 183 ALR 1, 33.

[160] See footnote 159, 1.

[161] See footnote 159, 55.

[162] See footnote 159, 32.

[163] Parliament of Australia. (2001). Migration Amendment (Excision from Migration Zone) Bill 2001. Retrieved from <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0102/02bd069>. Site accessed on 19 May 2020.

[164] M Coombs. (1 March 2004). Excisions from the migration zone: policy and practice, Research note, no. 42, Parliamentary Library. Retrieved from <http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fprspub%2FJ4TB6%22>.

[165] Amnesty International. (2016). Island of Despair: Australia's 'Processing' of Refugees on Nauru (p. 7). London, UK; UN urges Australia to find humane solutions for refugees, asylum seekers on Manus Island. UN News. 2017. Retrieved from <https://news.un.org/en/story/2017/12/640351-un-urges-australia-find-humane-solutions-refugees-asylum-seekers-manus-island>. Site accessed on 19 May 2020.

[166] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (No. 113, 2012).

[167] Official Committee Hansard, Australian Senate Legal and Constitutional Affairs Legislation Committee, 21 October 2019, 76 (Michael Pezzullo).

[168] [2006] 1 NZLR 289 at 294.

[169] See footnote 159, 33.

[170] D v Minister of Immigration [1991] 2 NZLR 673 (NZ CA, 13 February 1991).

[171] C and Others v. Director of Immigration and Another Civil Appeals No. 132-137 of 2008 (Hong Kong: High Court, 21 July 2011).

[172] See footnote 171, [3].

[173] See footnote 171, [56].

[174] See footnote 171, [61].

[175] See footnote 171, [66].

[176] See footnote 171, [81].

[177] See footnote 9. ​