Why the Regional Comprehensive Agreement Jeopardizes Australia’s Refugee Obligations

by Dio Herdiawan Tobing, Senior Policy Advisor for Foreign Affairs at the Embassy of the Kingdom of Netherlands in Indonesia

To understand this commentary, it must be understood that Australia, International Organization for Migration (IOM), and Indonesia entered into the so-called ‘Regional Cooperation Agreement’ (RCA) in 2000. The RCA was established to intercept asylum-seekers en route to Australia and redirect them to be temporarily hosted in Indonesia. In return, Australia provides border-control equipment and training to Indonesia in these refugees and especially upgrade of refugee facilities in Indonesia. With ‘pushback’ operations done by Australia to transfer refugees from their boats to Australian vessels and then pushed them to Indonesian territorial waters to be saved by the Indonesian authorities, Australia argued that it may shed its responsibilities as Indonesia provides effective protection for refugees.

However, this becomes problematic on its own because international law does not impose obligation to a state to process an asylum if another state is willing to do so (first country), such action may bring serious legal implications, especially when the safe country of asylum (SCA) is ‘unsafe’ for refugees. The UNHCR stated, SCA is applicable when,

‘asylum-seekers/refugees may be returned to countries where they have, or could have, sought asylum and where their safety would not be jeopardized, whether in that country or through return there from to the country of origin.’

Although the RCA conveys another legal obligation, the implications on the implementation of the agreement could have brought a serious breach of international refugee law as follows.

First, by transferring refugees to Indonesia, Australia may have contravened the non-refoulement principle under the Convention Against Torture (CAT) due to its lack of assessment on safety of refugees under Indonesia’s jurisdiction. A non-refoulement obligation, asserted by the Committee Against Torture (CommAT) in Mutombo v. Switzerland, extends to third countries in which they would face real risk of being tortured or being returned to a country where they might be in danger. In this scenario, Australia did not comply to the prior terms, by declaring Indonesia as a SCA, to ensure the aspect of the safety of refugee ‘would not be jeopardized’. As CommAT describes, the risk  of  torture  ‘must  be  assessed  on  grounds  that  go  beyond  mere  theory  or suspicion’, but does not have to meet the test of test of being highly probable. While torture as such may unlikely to be found, refugees are kept in overcapacity detention centers lacking of adequate facilities in Indonesia. This grossly inadequate detention conditions, ‘can even amount to torture if they are intentionally imposed’. Arguably, Indonesia intentionally imposes such regulation because other options are available and therefore, be attributable to Australia.

Second, we can see that Australia was rather unsuccessful in observing if there are relevant laws which prohibit refoulement in Indonesia. Criteria of a SCA or safe third country (STC) is absent within the region, therefore, it would be fair to reflect on European Asylum Procedures Directive (APD)’s STC standard. Under article 37, a STC must respect ‘the principle of non-refoulement in accordance with the Geneva Convention is respected’. Although this does not apply to Indonesia, in general, it gives a general picture of what constituted of a ‘safe country’. On such criteria, it can be seen that Australia’s shortcoming responsibility is doubled especially in assessing applicable laws that honor non-refoulement in Indonesia and Indonesia’s relation to the Refugee Convention.

Through Indonesia’s legal perspective, Indonesian immigration law permits, a return of an individual when he/she ‘neglects hazardous activities and reasonably suspected to endanger public security and orderliness or without respect or observe applicable laws and regulations’ which somewhat constitutes refoulement. Therefore, whenever a refugee is being returned, if he/she was subject of the RCA, Australia can be held responsible of any persecution that Individual faces in the country of origin.

Nonetheless, in this case, it reflected how Australia had not met the expectations especially in assessing Indonesia’s refugee commitment, as it is a non-party to the Refugee Convention. Whilst the UNHCR had provided that ‘burden-sharing’ are reasonable, if always taking into assurance the protection of refugees and solutions to their problems, it shall follow as the states’ responsibility to examine refugee claims are derived only by the Refugee Convention. Therefore, Indonesia’s non-ratification should have been questioned in the first place by Australia as a state party.

To conclude, there are some drawbacks in Australia’s part in carrying out its obligation in regard ensuring refugee protection by entering into RCA. Moreover, it is possible to assume that they might have failed to assess the safety guarantees of refugees’ livelihood in Indonesia due to detention amounting to torture. In addition to that, this also includes lack of comprehensive examination that look further at applicable laws in Indonesia regarding deportation which they may amount to refoulement, and assess Indonesia’s refugee commitment.

(Disclaimer: This writing was modified from the writer’s LLM paper entitled “Australia’s ‘Burden-Shifting’ of Refugee obligations to an ‘Unsafe Haven’” submitted for the 2017-2018 Privatissimum Course in Leiden University, the piece reflects the writer’s own views).