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INTRODUCTION

Is the limitation imposed by international law on the freedom of Australia to prevent and

remove irregular migrants that are smuggled into Australia by boat an unjustifiable

interference with Australia’s sovereignty? There is a fine balance between the sovereign rights

of a country for the purpose of protecting its population and economy, and its obligations to

international law, particularly regarding irregular migrants smuggled in by boat. Wars, conflicts

and persecution have been around since the beginning of civilization, which sadly continues to

this day, but now more commonly occurring within states rather than between states.1 Only since

the end of World War Two, the establishment of the United Nations and the multilateral charters

and treaties protecting individual human rights, has more consideration been given to the human

condition and a move towards individualist rights that accompany these precepts. Many from the

international community have heavily criticised Australia’s “harsh” migration laws placed on

irregular migration smuggled in by boat.2 Yet in contrast, Germany’s open border welcome

policy has in part created an extraordinary wave of European migration smuggled in mostly by

boat from the start of the 2015 northern summer. Ironically, now that some European countries

are struggling to provide sufficient housing3 - particularly during the grip of winter,4 similar

1 Ekatarina Balabanova, ‘Media, Wars and Politics, (Ashgate 2013), 25. 2 See as examples: Bachelard, Michael and Sarah Whyte, ‘UN representatives criticise Abbott government’s boat

tow-back policy’, The Sydney Morning Herald (23 April 2014) <http://www.smh.com.au/federal-politics/political-

news/un-representatives-criticise-abbott-governments-boat-towback-policy-20140422-zqxz1; ‘Amnesty

International condemns Australia's asylum seeker policies, labels counter-terrorism measures 'regressive' and says

global response to terrorist groups 'shameful'’ 24 February 2015, ABC News Online,

<http://www.abc.net.au/news/2015-02-25/amnesty-condemns-australia's-asylum-seeker-policies/6261348>. 3 See as examples: Jane Dudman, ‘UN Envoy: Europe faces daunting task on refugees but housing a human right’,

The Guardian, (5 December 2015) http://www.theguardian.com/housing-network/2015/dec/05/un-envoy-europe-

refugees-housing-human-right-leilani-farha>; Henry Samuel, ‘Refugees shun France, land of red tape,

unemployment and poor housing’, The Telegraph (Paris), 21 September 2015,

<http://www.telegraph.co.uk/news/worldnews/europe/france/11880391/Refugees-shun-France-land-of-red-tape-

unemployment-and-poor-housing.html> . 4 See as an example: Holehouse, Matthew, and Melanie Hall, ‘Refugees will freeze to death, EU warns’, The

Telegraph (Brussels and Berlin), 25 October 2015

<http://www.telegraph.co.uk/news/worldnews/europe/eu/11954037/Refugees-will-freeze-to-death-warn-EU-

head.html>

Commented [RWP[1]: Prevent what?

Commented [RWP[2]: International obligations are binding; they cannot be balanced off

Commented [RWP[3]: True, but not relevant to your essay?

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closed border processes are either being set up or planning to be set up either along the European

coast, and more unprecedently, inside the Schengen borders.5

In light of these recent events, I will argue that maintaining Australia’s sovereignty by

preventing and removing aliens smuggled in by boat can still be achieved without compromising

its legal obligations to international law. In response, this essay will explicate a brief background

of irregular migration; a brief narrative on people smuggling; current sovereignty interpretation;

how Australia interprets its sovereign obligations to international treaties in general; and finally

how Australia interprets and reacts specifically to its legal obligations to international human

rights with respect to its ability to prevent and remove irregular migrants smuggled in by boat.

1. BACKGROUND – IRREGULAR MIGRATION

Mass irregular migration is not new. But, now in the 21st century, globalisation and advanced

telecommunication has never created a more global attention of events around the world,

revealing the ever increasing diaspora due to war and conflict.6 Europe’s last summer saw over

one million migrants making their way into Europe seeking asylum, refuge, or a better life from

abject poverty.7 After making the perilous journey mostly smuggled in by boat from either

Africa or the Middle East, they continued their journey north to mostly Germany and Sweden.8

5 See as examples: ‘Europe’s closing borders: Support for free travel contingent on better law and order’, Wall Street

Journal (7 January 2016) <http://www.wsj.com/articles/europes-closing-borders-1452212006>; ‘Austria suspends

Schengen agreement, steps up border control, tells EU to sort out migrant crisis’, RT (17 January 2016)

<https://www.rt.com/news/329215-austria-borders-migrants-schengen/>; Antonia Matthews, ‘Not so liberal now:

Europe’s open doors closing fast’, CNBC – Europe News, (6 January 2016) <http://www.cnbc.com/2016/01/06/not-

so-liberal-now-europes-open-doors-closing-fast.html>. 6 See for example: Chris Kenny, ‘Changing the truth: digital media is distorting mainstream coverage’, The

Australian, (Sydney) 21 December 2013, <http://www.theaustralian.com.au/opinion/columnists/changing-the-truth-

digital-media-is-distorting-mainstream-coverage/story-fn8qlm5e-1226787762364>; Balabanova, above n 1, xiii-xiv. 7 See for example: ‘Worldwide displacement hits all time high as war and persecution increase’ UNHCR (Geneva),

18 June 2015, <http://www.unhcr.org/558193896.html>; Hereward Holland, ‘Over one million sea arrivals reach

Europe in 2015’ UNHCR (Lesvos, Greece), 30 December 2015, <http://www.unhcr.org/5683d0b56.html>. 8 UNHCR, ‘Refugees/Migrants Emergency Response – Mediterranean Regional Overview, UNHCR (2016)

<http://data.unhcr.org/mediterranean/regional.php>; ‘Asylum Quarterly Report – Statistics Explained’, Eurostat, (10

December 2015) < http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report>; ‘Asylum

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Germany’s Chancellor Merkel was praised by humanitarian groups for ceasing the application of

the Dublin regulation and opening Germany’s border for Syrians policy.9 However, by the time

the frigid cold winter set in, initially with insufficient food and accommodation for all, the

apparent inability to turn back those that have been officially declined asylum, and the realisation

that it is not stopping with more on the way at an unprecedented scale, there is also a growing

culture clash and impatience between the migrants and the European citizens, and Europe’s ever

increasing fear of the future.10 Chancellor Merkel’s suspension of the Dublin Agreement and the

Schengen Agreement by opening German borders without any migration processing at the

Schengen boundary, and without sufficient preparation does not seem to have served well for

both the asylum seekers and for the European citizens. Attention must be given as to how much

the media has played a role in aggravating the situation that caused both the “push” and “pull”

factors both in Europe and Australasia?11 It is possible that the 24/7 news cycle and social media

have also impacted on the demands made upon receiving country governments in both Western

and neighbouring conflict countries by the international community in resolving seriously

problematic situations; and also how it may have impacted upon the displaced that are wealthy

and healthy enough to make the treacherous journeys en masse.12

and Migration – Statistics Illustrated’, Eurostat, < http://ec.europa.eu/eurostat/web/asylum-and-managed-

migration/statistics-illustrated>. 9 Andrew McCathie, ‘European Migrant Crisis: Young asylum seekers could be solution to Germany’s economic

challenges’, ABC News (Berlin) 16 September 2015 <http://www.abc.net.au/news/2015-09-09/europe-refugee-

crisis-could-be-germany-economic-silver-lining/6760756>; Andrea Dernbach, ‘Germany suspends Dublin

agreement for Syrian refugees’ (Samuel Morgan transl from Der Tagesspiegel) EurActiv (26 August 2015)

<https://www.euractiv.com/section/migrations/news/germany-suspends-dublin-agreement-for-syrian-refugees/>. 10 For example: Erasmus, ‘Diverse, desperate migrants have divided European Christians’, The Economist

(6 September 2015) <http://www.economist.com/blogs/erasmus/2015/09/migrants-christianity-and-europe> 11 Refer to: “The former US President, Clinton….claimed that ‘[b]ecause of a communication revolution,

symbolised most clearly by CNN…. we are front-row history witnesses. We see things as they occur. Now we are

impatient if we learn about things an hour after they occur instead of seeing them in the moment.” as quoted in

Balabanova, n 1, 2; Also Balabanova, n 1, 1-20; Frank Furedi, ‘Europe Migrant Crisis: Merkel’s standing trampled

by flood of migrants, The Australian (22 January 2016) < http://www.theaustralian.com.au/news/world/europe-

migrant-crisis-merkels-standing-trampled-by-flood-of-migrants/news-story/e2d8bc1db37cf0f7f786814fe6e4bf76> 12 Ibid, xiii-xiv.

Commented [RWP[4]: This section is good but you have to ask yourself – how necessary is it for consideration of your main issue?

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EUROPEAN FLOOD SCENARIO IN AUSTRALIA

There is now significant concern of when and how this European flood will end.13 This kind of

irregular migration policy could be described as “survival of the fittest and wealthiest.” There is

no order, no control, and these receiving countries have lost their sovereign right to decide who

may enter and live within its borders. It is not sustainable. Decision-makers such as the EU, UN

and NATO need to take further action to not only reconsider their migration policies and laws,

but to also end the causes of these “push” factors, like that achieved in Kosovo during the

1990s.14

In contrast to the other side of the world, Australia is an island nation that has also experienced

unlawful entry by those seeking asylum, refuge, or just a better way of life by air and boat.

Warfare has been the main “push” factor for most Australian irregular migrants, coming mostly

from Afghanistan, Iran, Iraq and Sri Lanka.15 Admittedly, the numbers that enter Australia’s

borders are minuscule compared to the numbers in Europe. Nonetheless, Australia has made

headlines here and overseas for its “harsh” and “severe” irregular migration policy, and

accompanying laws and operations.16

13 Furedi, ‘Europe’s migrant crisis’, above n 11. 14 Javier Solana, ‘NATO’s Success in Kosovo’ (1999) Foreign Affairs 78(6), 114-120; ‘NATO’s role in relation to

the conflict in Kosovo’ NATO (15 July 1999) <http://www.nato.int/kosovo/history.htm>. 15 The largest source country for protection visa applicants who arrive by air is China, although the success rate for

this group is quite low. See Department of Immigration and Citizenship (DIAC), Asylum trends, Australia 2010–11,

DIAC, Canberra, 2011, p. 26, <http://www.immi.gov.au/media/publications/statistics/asylum/_files/asylum-trends-

aus-annual-2010-11.pdf> as cited in Harriet Spinks, ‘Destination Anywhere? Factors affecting asylum seekers’

choice of destination country’, (Research Paper 1, 2012-2013, Parliamentary Library, Parliament of Australia,

2013), 4. 16 ‘International Community Condemns Australia’s treatment of asylum seekers during major human rights review

at UN’, Human Rights Law Centre, (Nov 2015) <http://hrlc.org.au/international-community-condemns-australias-

treatment-of-asylum-seekers-during-major-human-rights-review-at-un/>; Jared Owens, ‘UN Human rights review

slams Australia’s asylum seeker policies’ 12 November 2015, The Australian,

<http://www.theaustralian.com.au/national-affairs/immigration/un-human-rights-review-slams-australias-asylum-

seeker-policies/news-story/29a4c5e8b0ecf94a327f7fe822dfec07>; Amy Maguire, ‘Why does international

condemnation on human rights mean so little to Australia?’ 4 February 2016, The Conversation,

<http://theconversation.com/why-does-international-condemnation-on-human-rights-mean-so-little-to-australia-

53814>; ‘Amnesty International condemns Australia's asylum seeker policies, labels counter-terrorism measures

'regressive' and says global response to terrorist groups 'shameful'’ above n 2; Michael Gordon, ‘New UN human

rights chief attacks Australia over asylum seeker rights 'violations'’, 7 September 2014, The Sydney Morning Herald,

<http://www.smh.com.au/federal-politics/political-news/new-un-human-rights-chief-attacks-australia-over-asylum-

seeker-rights-violations-20140907-10dlkx.html>; ‘The State of the World’s Human Rights’ (2015) Amnesty

International Report 2014/15; ‘UN representatives criticise Abbott government’s boat tow-back policy’, above n 2.

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At the end of 2013, there were more than 51 million people forcibly displaced worldwide, more

than 11 million of those are refugees under UNHCR’s mandate. 17 Considering what has

happened in Europe, it is now conceivable that this could occur in Australia if it was to relax its

sovereign rights to border protection. There are tens of thousands of irregular migrants still

waiting in transit in South East Asia; including millions of Indonesians and Malaysians that live

in abject poverty. It would be highly questionable if a nation of just 24 million could remotely

sustain economically or politically a similar influx after one year, yet alone continual years

thereafter.

Janet Phillips asserts “[t]he concept of an orderly queue does not accord with the reality of the

asylum process.”18 However, using the analogy of an organ transplant waiting list where there

are always more in need of a transplant than there are organs available, it is a sad fact that

innumerous numbers die each year worldwide while waiting for an organ donor. However,

waiting lists are strictly controlled, orderly and distributed based on priority. There is no other

way to operate it to make it more equitable and humane. The best hope is to get a match and

being at the top of the priority list before it is too late.19 So too should irregular migration.

Australia heavily invests in the orderly approach of humanitarian aid and resettlement, and is

consistently ranked as one of the top three countries in the UNHCR Resettlement Program.20

With the exception of neighbouring countries, anarchy does not need to be accepted. Strategies

(that are beyond the scope of this essay for discussion) can be put in place to avoid such chaos.

When migratory movement are at the volume demonstrated last year in Europe in such a short

space of time, it is unrealistic to provide the utopic refuge that is expected. The result of this

migration wave was mostly due to the “push” factor of fleeing war, conflict and persecution.

However, it was also partly due to the “pull” factor of Europe providing an open border safe

17 UNHCR, Global trends 2013, Geneva, June 2014. 18 Janet Phillips, ‘Asylum seekers and refugees: what are the facts?’ (Research Paper Series 2014-15, Parliamentary

Library, Parliament of Australia, 2 March 2015), 5-6. 19 Rachael Rettner, ‘Lung Donor System: How kids may slip through the cracks’, Live Science (6 June 2013)

<http://www.livescience.com/37248-lung-donation-priority.html>; ‘Patient Info: Organ Donation: Kidney

transplants and organ transplantation’, Patient, <http://patient.info/doctor/organ-donation-pro>. 20 Elibritt Karlsen, ‘Refugee resettlement to Australia: What are the facts?’ (Research Paper Series, 2014-15,

Parliamentary Library, Parliament of Australia, February 2015), 5.

Commented [RWP[5]: Why not?

Commented [RWP[6]: What do you mean by this?

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haven with no restrictions, better living conditions, and generous welfare.21 The majority from

the East had already fled the immediate threat and were taking refuge in neighbouring countries

such as Jordan, Lebanon, and Turkey.22 Those coming from Sub-Sahara Africa travelled from

afar over desert in the hope of getting a boat to Italy, Spain or Malta.23 If Europe protected its

Schengen borders by closing and protecting them like that done in Australia, invested more

heavily in permanent resettlement, more collaboration and investment in the process of asylum

with neighbouring refuge countries from where the migrants come, it is conceivable that a more

orderly, safer, and humane permanent resettlement process could have been achieved.

2. PEOPLE SMUGGLING

People smuggling is not new, but in the new post-Cold War period of the 1990s, there was a

spike in irregular migration into Western Europe and the United States, along with increased

transnational organised crime.24 In an international response, negotiations of a treaty which

explicitly criminalised people smuggling was created.25

People smuggling is officially described as “… the procurement, in order to obtain, directly or

indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which

the person is not a national or a permanent resident.”26

21 Natalie Banulescu-Bogdan and Susan Fratzke, ‘Europe’s Migration Crisis in Context: Why now and what next?’

Migration Information Source (24 September 2015) <http://www.migrationpolicy.org/article/europe-migration-

crisis-context-why-now-and-what-next> 22 ‘Syria Regional Refugee Response - Interagency information Sharing Portal’ UNHCR, (17 February 2016)

<http://data.unhcr.org/syrianrefugees/regional.php#> 23 United Nations High Commissioner for Refugees, Asylum levels and trends in industrialized countries 2014:

statistical overview of asylum applications lodged in Europe and selected non-European countries, UNHCR, 2015,

10 <http://www.unhcr.org/551128679.html> 24 Andreas Schlöenhardt, ‘Migrant Smuggling and Organised Crime in Australia’ (2011) (Research Paper, Migrant

Smuggling Working Group, University of Queensland, 2011), 14. 25 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention

against Transnational Organized Crime, opened for signature 15 November 2000, GA Res 55/25, 2241 UNTS 507

(entered into force 28 January 2004) art 3(a), (Smuggling of Migrants Protocol). 26 Smuggling of Migrants Protocol, art 3(a).

Commented [RWP[7]: defined

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People smuggling essentially occurs when borders exist that require unattainable legal

documents, and there is a demand for better living conditions, and freedom and relative safety -

all of which are mostly available in prosperous western countries. Smugglers exploit these

desires by setting up highly profitable businesses by facilitating these migrants to cross these

borders unlawfully.27 It is extremely dangerous for the migrants but highly lucrative for the

smugglers.28 As per article 6 of this protocol, migrant smuggling is a criminal offence. State

Party signatories, such as Australia, are subsequently expected to incorporate treaty obligations

into domestic law and other measures to ensure the prevention, investigation and prosecution of

these smugglers.29 Importantly, Article 5 of the Protocol recognises that the migrants whom use

these smugglers are not liable to prosecution.30 It is under this protocol that Australia’s current

migration laws serve better in comparison to Europe’s in that since the election of the current

government, only one smuggled boat has succeeded.

As mentioned in Article 5, there are other related international treaties of which Australia is a

member. While more specific and detailed discussion on other human rights related treaties are

beyond the scope of this essay, suffice to say they have created limitations on how Australia

design their laws and operations. However, ways have been found to interpret and work with

them, which will be discuss later on how this is accomplished.

3. CURRENT INTERPRETATION OF SOVEREIGNTY

Since the 1648 Treaty of Westphalia, States have increasingly recognised each other’s authority

of self-determination. Three hundred years later, the concept of sovereignty has been codified in

the Charter of the United Nations.31 Originally having absolute independence within its borders,

27 Mattias Neske, ‘Human Smuggling to and through Germany’, (2006) International Migration, 44(4), 121-122,

124. 28 United Nations Office on Drugs and Crime, Issue Paper: A Short Introduction to People Smuggling, Un Doc

(2010), 13. 29 Smuggling of Migrants Protocol, art 6. 30 Smuggling of Migrants Protocol, art 5. 31 See Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24

October 1945) Article 2(7) as cited in Anne L Clunan, ‘Ch 1 – Redefining Sovereignty: Humanitarianism’s

Commented [RWP[8]: does that not depend on what the laws are meant to do?

Commented [RWP[9]: party

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its responsibilities as a sovereign state was protecting its people through law and order within,

and the control of movement of individuals in and out of its borders. Since the end of World War

II, the establishment of the United Nations and the growing concept of individualist

globalisation, sovereignty has now developed into an authority in which its international

obligations are challenging its continued authority of its borders.32 Particularly with the recent

unprecedented increase of international diaspora since the end of World War II, along with

terrorist concerns experienced by Western States, the overwhelming pressure to honour

international customary and treaty law is threatening this last bastion of sovereignty to decide

who may enter, live, and be removed.33 In response with this increasing threat, many States are

now turning to law enforcement, military and detention measures which, in turn, is often

interpreted by the international community as violating international human rights obligations.34

Burmester argues that there is now a more global interdependence between countries and people.

It is no longer a sovereign duty to protect the people from foreign threats but to enable people

more global economic connectivity and universal human right standards. Although the creation

of the United Nations Charter legitimises sovereign authority, it and customary international law

does not recognise its absoluteness. Burmester explains that just like individuals do not have

absolute rights, neither do States within the international community. Indeed, since it is the

members themselves that create an international treaty, ratifying that treaty is taking acceptance

of its partial loss of internal sovereign rights, but at the same time demonstrates having the

ability to even enter into an international treaty is a sovereign right in itself. 35

Challenge to Sovereign Immunity’ in Michaelene Cox and Noah Shawki (eds), Negotiating Sovereignty and Human

Rights, (Ashgate Publishing Group 2009), 7. 32 See Richard Perruchoud, ‘Ch 5 – State Sovereignty and Freedom of Movement’ in Brian Opeskin, Richard

Perruchoud and Jillyanne Redpath-Cross (eds), International Migration Law (Cambridge University Press 2012)

123; and Aristide R Zolberg, ‘Changing Sovereignty Games and International Migration’ (1994) Fall Global Legal

Studies Journal 2(1), 153-169, 166. 33 Richard Perruchoud, ‘Ch 5 – State Sovereignty and Freedom of Movement’ in Brian Opeskin, Richard

Perruchoud and Jillyanne Redpath-Cross (eds), International Migration Law (Cambridge University Press 2012)

124-125. 34 Ryszard Piotrowicz and Jillyanne Redpath-Cross, ‘Ch 9 – Human Trafficking and Smuggling’ in Brian Opeskin,

Richard Perruchoud and Jillyanne Redpath-Cross (eds), International Migration Law (Cambridge University Press

2012) 247. 35 Henry Burmester, ‘National Sovereignty, Independence and the impact of treaties and international standards’,

(1995) Sydney Law Review, 17(127), 129, 130, 133.

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Even in Australia’s Seas and Submerged Lands Case, Stephen J held that since World War II,

national rights are a product of international relations and international law:

‘It is international intercourse between nation states which is the substance of a nation’s

external affairs. Treaties and conventions to which a nation may become a party form, no

doubt, an important part of those affairs, but ‘external affairs’ will also include matters

which are not consensual in character; conduct on the part of a nation, or of its nationals,

which affects other nations and its relations with them are external affairs of that nation

…’36

4. AUSTRALIA’S SOVEREIGN OBLIGATIONS TO

INTERNATIONAL TREATIES IN GENERAL

In the Vienna Convention on the Law of Treaties (1969), a treaty37 is defined as

“…an international agreement concluded between States in written form and governed by

international law, whether embodied in a single instrument or two or more related

instruments and whatever its particular designation.” 38

As expected in ratifying a treaty, a State Party such as Australia, is expected to honour their

obligations in good faith, otherwise it is not a treaty as per article 26 of the Vienna Convention.39

Further, as per article 27 a State Party cannot enact domestic law that intentionally contravenes

its obligations of the treaty; doing so would breach the treaty and the State’s international

responsibility.40

36 New South Wales v Commonwealth (1975) 135 CLR 337. 37 Also known as a ‘protocol’, ‘charter’, ‘covenant’, ‘pact’, ‘statute’, or ‘arrangement’; Vincent Chetail, Ch 3 -

Sources of international migration law in Foundations of International Migration Law, Brian Opeskin, Richard

Perruchoud, Jillyanne Redpath-Cross (eds), (2012 Cambridge University Press), 57. 38 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into

force 27 January 1980) art. 2(1)(a). 39 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into

force 27 January 1980) art. 26 as cited in Vincent Chetail, Ch 3 - Sources of international migration law in

Foundations of International Migration Law, Brian Opeskin, Richard Perruchoud, Jillyanne Redpath-Cross (eds),

(2012 Cambridge University Press), 57, 65. 40 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26

June 1947 (Advisory Opinion) [1988] ICJ Rep 12, 26 as cited in Vincent Chetail, Ch 3 - Sources of international

Commented [RWP[10]: what do you mean by ‘an obligation to a treaty’?

Commented [RWP[11]: that is correct, but failure to abide by an obligation does not stop the treaty being a treaty.

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DUALIST PRINCIPLE

Australia incorporates the “dualist principle”41 in its application to international law, in that it

treats it as a separate legal system to that of Australia’s own, and therefore not legally binding

unless it has been legislatively incorporated into domestic statute law.42

Reiterated by Mason CJ and Dean J in Teoh.43

‘It is well established that the provisions of an international treaty to which Australia is a

party do not form part of Australian law unless these provisions have been validly

incorporated into our municipal law by statute. This principle has its foundation in the

proposition that in our constitutional system the making and ratification of treaties fall

within the province of the Executive in the exercise of its prerogative power whereas the

making and the alteration of the law fall within the province of Parliament, not the

Executive. So, a treaty which has not been incorporated into our municipal law cannot

operate as a direct source of individual rights and obligations under that law.’44

Donaghue45 thought this problematic in whether an international treaty is still legally binding

when there is an expectation for domestic laws to adopt the treaty by the Legislature when it has

already been ratified by the Executive. If this is so, Donaghue asked whether this meant that the

Executive now has the power to legislate law without Parliamentary assent.46 The Australian

government interestingly asserts47 that domestic laws will already be aligned to international

treaty obligations before the Executive decides to ratify a treaty. If so, surely this would allow

migration law in Foundations of International Migration Law, Brian Opeskin, Richard Perruchoud, Jillyanne

Redpath-Cross (eds), (2012 Cambridge University Press), 66. 41 Also known as ‘transformed theory’. 42 George Williams, Sean Brennan & Andrew Lynch (eds), Ch 20 – International Law and the External Affairs

Power in Australian Constitutional Law and Theory, 6th ed (2014 Federation Press), 885 [20.1]. 43 Minister for Immigration and Ethnic Affairs v Teoh (Teoh) (1995) 183 CLR 273, at [286]-[287] cited in George

Williams, Sean Brennan & Andrew Lynch (eds), Ch 20 – International Law and the External Affairs Power in

Australian Constitutional Law and Theory, 6th ed (2014 Federation Press), 887 [20.5] [20.9]. 44 Teoh (1995) 128 ALR 353, 361-362; see also Dietrich v R (1992) 117 CLR 292 at 305, per Mason CJ and

McHugh J; at 321, per Brennan J; at 360. 45 Stephen Donaghue, ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in

Australia’ (1995) 17 Adelaide Law Review 213-267, 223-224. 46 Stephen Donaghue, ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in

Australia’ (1995) 17 Adelaide Law Review 213-267, 226. 47 Department of Foreign Affairs and Trade, Australian Government, Treaty making process,

<http://dfat.gov.au/international-relations/treaties/treaty-making-process/pages/treaty-making-process.aspx>;

Stephen Donaghue, ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in

Australia’ (1995) 17 Adelaide Law Review 213-267, 248.

Commented [RWP[12]: It is binding upon Australia at international law once ratified, whether or not it has been incorporated.

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the judiciary the ability to interpret existing domestic law relevant to international law.

Contrarily, there is vexation within the judiciary of having to utilise Teoh’s Principle to

persuasively influence international law upon common law when statute or subordinate

legislation is ambiguous.48 Therefore in reality, this dualist principle creates a lacuna between

domestic law and international treaty obligations, placing Australia at risk of violating a treaty.49

MONIST PRINCIPLE

In contrast since World War Two, most States50 have incorporated treaty obligations directly into

domestic law, some of which are even self-executory. Known as the monist principle,

international law becomes legally binding on their domestic law and prevails even over enacted

domestic legislation.51 Adopted into their respective constitutions52, some form of legislature

approval is required before a treaty is ratified. But once approved and published, the treaty is

automatically adopted and prevailing over domestic law.53 That is, the treaty instruments are

directly interpreted into existing legislation as per international interpretative rules.54 Whether

this international jurisprudence could be adopted in Australia, or interfere with its sovereign

authority, or contravene Australia’s Constitution, are unknown. Nevertheless, Australia utilises s

51(xxix) to make laws in relation to external affairs when it ratifying a treaty. Currently, under

Australia’s dualist principle, not only are there possibilities of violating its treaty obligations by

not adopting the treaty into domestic law, but when it does enact domestic law, it does so with

the additional risk of possibly broadening the construction of the provisions to the point it

becoming repugnant to the treaty.55

48 Teoh (1995) 183 CLR 273, [287]-[288] as cited in George Williams, Sean Brennan & Andrew Lynch (eds), Ch 20

– International Law and the External Affairs Power in Australian Constitutional Law and Theory, 6th ed (2014

Federation Press), 887 [20.9]. 49 Stephen Donaghue, ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in

Australia’ (1995) 17 Adelaide Law Review 213-267, 231. 50 Such as Germany, Switzerland, Mexico, Argentina, the Netherlands, Belgium, France, the United States, Austria,

Italy, Luxembourg, Republic of Korea, Japan and Brazil 51 Vincent Chetail, Ch 3 - Sources of international migration law in Foundations of International Migration Law,

Brian Opeskin, Richard Perruchoud, Jillyanne Redpath-Cross (eds), (2012 Cambridge University Press), 66. 52 With the exception of Belgium as listed in n51. 53 Donaghue, ‘Balancing Sovereignty and International Law, 234-239. 54 Ibid 231-32. 55 Ibid 232.

Commented [RWP[13]: These sections on incorporation could have been omitted. It is good that you understand the principles but they do not need to be explained separately in this essay; you just need to refer to them – where appropriate – in your discussion of the main issue, which is migration law, not the relationship between international and Australian law

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5. DOMESTIC MIGRATION LAW AS OBLIGATED TO

INTERNATION HUMAN RIGHTS RELATED

CONVENTIONS

OPERATION SOVEREIGN BORDERS

In the last 16 odd years, three different governments have made their mark on their policies with

respect to irregular migration. Since the election of the current Government, a suite of border

protection and immigration policies collectively known as Operation Sovereign Borders has been

legally implemented. To become operational, several legislative amendments56 were passed

through Parliament, mostly affecting the Migration Act 1958 (Cth), several other existing Acts, 57

and the creation of the Australian Border Force Act 2015 (Cth). With the exception of two bills

that are currently in the House of Representatives,58 all are now Acts of Parliament and

operational.

In order to protect its sovereignty, Australia’s ‘Operation Sovereign Borders’ has taken a very

narrow interpretation of its obligation to international human rights related treaties, by putting in

place rigorous policies, laws, and operational procedures that have now severely curtailed the

people smugglers ability to transport irregular migrants into Australia by boat. In spite of the

international community being highly critical of Australia’s interpretation of its human rights

legal obligations with regards to sea interdiction, Australia’s highest judiciary have, on the

56 Australian Border Force Bill 2015 (Cth); Customs and Other Legislation Amendment (Australian Border Force)

Bill 2015 (Cth); Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth); Migration

Amendment (Character Cancellation Consequential Provisions) Bill 2016 (Cth) (still in HOR); Migration

Amendment (Charging for a Migration Outcome) Bill 2015 (Cth); Migration Amendment (Complementary

Protection and Other Measures) Bill 2015 (Cth); Migration Amendment (Maintaining the Good Order of

Immigration Detention Facilities) Bill 2015 (Cth); Migration Amendment (Protection and Other Measures) Bill

2014 (Cth); Migration Amendment (Regional Processing Arrangements) Bill 2015 (Cth); Migration Amendment

(Strengthening Biometrics Integrity) Bill 2015; Migration and Maritime Powers Amendment Bill (No 1) 2015 (Cth)

(returned to HOR), Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy

Caseload) Bill 2014 (Cth); Migration Bill 2013 (Cth); Migration Legislation Amendment Bill (No 1) 2014. (Cth) 57 Customs Act 1901 (Cth); Maritime Powers Act 2013 (Cth); the Immigration (Guardianship of Children) Act 1946

(Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth); Australian Security Intelligence Organisation Act

1979 (Cth); Crimes Act 1914 (Cth); Electronic Transactions Act 1999 (Cth); Australian Citizenship Act 2007 (Cth);

Migration Regulations 1994 (Cth). 58 Migration and Maritime Powers Amendment Bill (No 1) 2015; Migration Amendment (Character Cancellation

Consequential Provisions) Bill 2016.

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whole, supported the legality of these arrangements.59 Most importantly, these domestic laws are

achieving the object of the Smuggling of Migrants Protocol, whilst not contravening any human

rights related law at the international judiciary level.60

HUMAN RIGHTS (PARLIAMENTARY SCRUTINY) ACT (2011) CTH

Since the enactment of the Human Rights (Parliamentary Scrutiny) Act (2011) Cth (“Human

Rights Act”), each Schedule of a Bill that is introduced into Parliament is accompanied with a

Statement of Compatibility with Human Rights.61 This is to ensure “parliamentary scrutiny of

new laws for consistency with Australia’s human rights obligations and to encourage early and

ongoing consideration of human rights issues in policy and legislative development.”62 Detailed

as an attachment in the Bill’s Explanatory Memorandum, the Statement provides an overview

and reason for the Bill, and then details each section’s compatibility with human rights that have

been defined as “the rights and freedoms recognised or declared by the seven core United

Nations human rights treaties as they apply to Australia.63 In addition, as per Part 2 of the

Human Rights Act, the Parliamentary Joint Committee on Human Rights also scrutinises these

Bills and other legislative instruments and report their findings before both Houses to ensure

compatibility of international human right covenants to which Australia is a party. Accordingly,

59 See CPCF V Minister for Immigration and Border Protection (2015) 89 ALJR 207; Plaintiff M68/2015 v Minister

for Immigration and Border Protection [2016] HCA 1. 60 A search through UNHRC communication views for the last five years have found no Australian listings with a

negative view. 61 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 8 (‘Human Rights Act’). 62 Explanatory Memorandum, Human Rights (Parliamentary Scrutiny) Bill 2010, 271. 63 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21

December 1965, 660 UNTS 195 (entered into force 4 January 1969);

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302;

(entered into force 23 March 1976);

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993

UNTS 3 (entered into force 3 January 1976);

Convention on the Elimination of All Forms of Discrimination against Women, opened for signature, 7 November

1967, 1249 UNTS 13 (entered into force 18 December 1979);

Convention on the Elimination of All Forms of Discrimination against Women, opened for signature, 7 November

1967, 1249 UNTS 13 (entered into force 18 December 1979);

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for

signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987);

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2

September 1990); Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515

UNTS 3 (entered into force 3 May 2008);

Explanatory Memorandum, Human Rights (Parliamentary Scrutiny) Bill 2010, 3.

Commented [RWP[14]: Are you going to discuss these arguments?

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the Australian Parliament has ensured a system that enables each bill to pass and assent into an

Act of Parliament that complies with Australia’s interpretation of its international human right

treaty obligations.64

As an example, a new section 22(A) Maritime Powers Act was added that essentially purports

that domestic law executed by the Executive will prevail over international law and Australia’s

international obligations. Specifically, in this matter at 19-20[17] of the Explanatory

Memorandum:

“The Australian Government takes its international obligations seriously, and Australia is

bound to act in compliance with its international obligations as a matter of international

law. This amendment does not seek to change that fact. Appropriate measures are always

taken to ensure that operational activities involving the exercise of maritime powers comply

with Australia’s international obligations. This amendment merely reflects the intention that

the interpretation and application of such obligations is, in this context, a matter for the

executive government. The Parliament’s intent in passing this amendment is that it be put

beyond doubt that Australia’s international obligations, the international obligations of

other countries and other countries’ domestic law cannot form the basis of an invalidation of

the exercise of the powers in Division 2 of Part 2 as a matter of domestic law.”65

CASE EXAMPLE: CPCF V MINISTER FOR IMMIGRATION AND BORDER

PROTECTION

As an example of Australia’s validity in its compliance with international law, Australia’s High

Court recently upheld Australia’s new migration and maritime power laws in the CPCF v

Minister for Immigration and Border Protection case with the UNHCR appearing as amicus

curiae. 66 French CJ summarised:

64 Parliament of Australia, Parliamentary Joint Committee on Human Rights,

<http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights>; Human Rights Act s 7. 65 Explanatory Memorandum for the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy

Caseload) Bill 2014 (Cth), 19-20[17]. 66 (2015) 89 ALJR 207.

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at 215-216[4] The central question to this case was whether maritime powers under the

Maritime Powers Act (2013) Cth (‘MPA’), and/or the non-statutory executive power of the

Commonwealth derived from s 61 of the Constitution67, authorised the detention and taking

of the plaintiff from Australia's contiguous zone to India. The particular questions and the

answers to them were set out at the end of these reasons and are substantially to the effect

that the detention and taking of the plaintiff was lawful pursuant to s 72(4)68 of the MPA.

Section 72(4) of the Migration Powers Act (2013) Cth was amended via the Migration and

Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 and assented

into an Act of Parliament on 15 December 2014. In the Explanatory Memorandum of the Bill, it

stated that s 72 was amended to the Migration Powers Act for clarification on the provision to

move vessels and persons, and related provisions; and to explicitly provide the Minister with a

power to give specific and general instructions about the exercise of powers under s 72 to ensure

the government has appropriate oversight.69 The amendment was also very specific with respect

to natural justice and Australia’s international obligations:

[P]rovide that the rules of natural justice do not apply to a range of powers in the Maritime

Powers Act, including the powers to authorise the exercise of maritime powers, the new

Ministerial powers and the exercise of powers to hold and move vessels and persons; and

ensure that the exercise of a range of powers cannot be invalidated because a court

considers there has been a failure to consider, properly consider, or comply with Australia’s

international obligations, or the international obligations or domestic law of any other

country;70

67 S 61 of the Constitution (Executive Powers): “The executive power of the Commonwealth is vested in the Queen

and is exercisable by the Governor-General as the Queen‘s representative, and extends to the execution and

maintenance of this Constitution, and of the laws of the Commonwealth.” 68 Maritime Powers Act 2013 (Cth) (‘MPA’) s 72(4) (which relates to persons on detained vessels and aircraft)

states: “A maritime officer may detain the person and take the person, or cause the person to be taken, to a place

(the destination).” This provision must be read in conjunction with s 74 of the Act which states: “A maritime officer

must not place or keep a person in a place, unless the officer is satisfied, on reasonable grounds, that it is safe for

the person to be in that place.” 69 Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload)

Bill 2014 (Cth), 2. 70 Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload)

Bill 2014 (Cth), 3.

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NON-REFOULEMENT OBLIGATION

When complying with non-refoulement obligations, the Australian government did not expect

legislative provisions to be strained beyond its intent of purpose for personal effect. For example,

as stated in the Explanatory Memorandum for the Migration and Maritime Powers Legislation

(Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), specific amendments were made as a

result of previous court cases71 that made “broadly and unintended” interpretations to s 198 of

the Migration Act. At 166 [1142] of the memorandum which stated:

Australia will continue to meet its non-refoulement obligations through other mechanisms

and not through the removal powers in section 198 of the Migration Act. For example,

Australia’s non-refoulement obligations will be met through the protection visa application

process or the use of the Minister’s personal powers in the Migration Act, including those

under sections 46A, 195A or 417 of the Migration Act.72

In other words, consideration of Australia’s non-refoulement obligations would already have

been determined by other processes prior to the decision for removal.73 Therefore s 198 is meant

to be interpreted as an operational provision for the representative of the Executive, and thus the

element of non-refoulement is not required for consideration in that provision at that time.74

OBLIGATIONS TO DETENTION

In terms of detention as a result of the cancellation, revocation or refusal of a visa as per s 189 of

the Migration Act, the relevant Explanatory Memorandum Statement of Compatibility with

Human Rights75 notes that:

71 See specifically M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131;

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; Plaintiff M70/2011 v Minister for

Immigration and Citizenship [2011] HCA 32; Plaintiff M61/2010E v Commonwealth of Australia &Ors/Plaintiff

M69 of 2010 v Commonwealth of Australian & Ors [2010] HCA 42; Minister for Immigration and Citizenship v

SZQRB [2013] FCAFC 33; 72 Also refer to Explanatory Memorandum for the Migration and Maritime Powers Legislation (Resolving the

Asylum Legacy Caseload) Bill 2014 (Cth), Appendix A, 4- 73 For example, upon application for a visa or when the Minister was using his/her powers pursuant to 46A, 195A or

417 of the Migration Act . 74 Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload)

Bill 2014 (Cth), 165[1128]–167[1146]; Commonwealth, Parliamentary Debates, Senate, 28 October 2014, 7974

(Fiona Nash) 75 Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 5.

Commented [RWP[15]: What do you mean by this?

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“… The Australian Government’s position is that the detention of individuals requesting

protection is neither unlawful nor arbitrary per se under international law. Continuing

detention may become arbitrary after a certain period of time without proper justification.

The determining factor, however, is not the length of detention, but whether the grounds for

the detention are justifiable.”

CONSEQUENCES AVOIDED

As a consequence of detracting sovereign rights to protect borders, comparatively those whom

have made the journey or have already started their journey in last year’s mass European

migration, and have had to endure the brutal European winter,76 it is highly questionable if they

are in any better situation than Australian irregular migrants in offshore detention centres in

terms of basic provisions of food, security, health care, and accommodation. Particularly due to

the Dublin agreement, hundreds are living on the streets in the southern European countries of

Italy and Greece.77 UNHCR and Europe’s misplaced good intentions could actually be

encouraging and enabling those already in refuge to take the treacherous risk of taking a boat

smuggled across the seas sadly resulting in the migrants playing a zero sum game. By

encouraging receiving coastal countries to actively patrol, rescue, and bring back smuggled boats

from the waters where irregular routes lie, is arguably encouraging people smugglers to make the

journey as they will know they would be picked up. This method has been purposely used by

Indonesian people smugglers with reports of the smugglers instructing boat captains to radio

assistance to the Australian Maritime Safety Authority before they have even left the Indonesian

76 See as examples: Matthew Holehouse and Melanie Hall, ‘Refugees will freeze to death, EU warns’, The

Telegraph (Brussels and Berlin), 25 October 2015

<http://www.telegraph.co.uk/news/worldnews/europe/eu/11954037/Refugees-will-freeze-to-death-warn-EU-

head.html>; ‘Freezing migrants cry foul as colds bites’, The Local, 20 October 2015

<http://www.thelocal.de/20151020/freezing-migrants-cry-foul-as-german-cold-bites>; Tom Miles, ‘Children on

Syrian refugee route could freeze to death: UN’, Reuters (Geneva) 19 January 2016

<http://www.reuters.com/article/us-europe-migrants-winter-idUSKCN0UX1SB>. 77 See as examples: Harriet Grant and John Domokos, ‘Dublin regulation leaves asylum seekers with their fingers

burnt’, The Guardian (8 October 2011) <http://www.theguardian.com/world/2011/oct/07/dublin-regulation-

european-asylum-seekers>; Patrick J Lyons, ‘Explaining the Rules for Migrants: Borders and Asylum’, The New

York Times, (16 September 2015) <http://www.nytimes.com/2015/09/17/world/europe/europe-refugees-migrants-

rules.html?_r=0>.

Commented [RWP[16]: Is it correct? This needs to be discussed

Commented [RWP[17]: Perhaps – but that is a policy rather than a legal issue. Whether one agrees with Australia’s policy or not, the issue is – does Australia’s policy conform to its international legal obligations?

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port, with the then Gillard Government being accused of operating policies that cause the

Australian Navy to being nothing more than “water taxis for people smugglers”.78

Meanwhile, millions are being left behind whom cannot afford air fares or smugglers, or are too

ill, frail or disabled to make the journey.79 This “survival of the fittest and wealthiest” policy

welcomed by human rights activists and implemented by Europe can hardly be equitable, just,

and safe for the majority left behind for weeks, months, years, or sadly some cases for

generations.80 Equally unfair are those whom have been waiting patiently (many in squalid

camps or detention centres) in Africa and the Middle East waited patiently, again sadly in some

cases for years, 81 after being approved to get permanent resettlement, only to be told to wait

even longer because someone fitter, healthier, wealthier and more audacious has taken their

place.82

78 See for example: Abbott (Leader of the Opposition), Transcript of the Hon. Tony Abbott MHR joint doorstop

interview with Mr Craig Laundy, Liberal candidate for Reid, Sydney, 12 July 2012, viewed 22 November 2012,

<http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1829854

%22>; Paul Maley and Peter Alford, ‘Smugglers' distress call rescue tactic’, The Australian, 12 July 2012,

<http://www.theaustralian.com.au/national-affairs/immigration/smugglers-distress-call-rescue-tactic/story-

fn9hm1gu-1226423932962> ; also cited in Cat Barker, ‘The people smugglers’ business model’ (Research Paper No

2, 2012/13, Parliamentary Library, Parliament of Australia, 28 February 2013), 9. 79 Sara Malm, ‘Syrian wives and mothers left behind condemn men who have fled the country…’, Daily Mail

Australia, (8 October 2015) <http://www.dailymail.co.uk/news/article-3263593/Syrian-wives-mothers-left-

condemn-men-fled-country-ask-free-protect-wrong-leave-country.html>; ‘Older Syrian refugees ‘forgotten’ by aid

agencies’, Age International <https://www.ageinternational.org.uk/latest-news/Older-Syrian-refugees-forgotten-by-

aid-agencies-claims-new-report--/>; Rachel Reilly, ‘Disabilities among Refugees and conflict-affected populations’

Forced Migration Review (July 2010) <http://www.fmreview.org/disability-and-displacement/rachael-reilly.html>. 80 See as example: Aamna Mohdin, ‘When refugee camps last for three generations, we must accept they’re going

nowhere’, SBS News (2 December 2015) <http://www.sbs.com.au/news/article/2015/12/01/when-refugees-camps-

last-three-generations-we-must-accept-theyre-not-going>. 81 See as example: Mohdin, ‘When refugee camps last for three generations, we must accept they’re going nowhere’. 82 Karlsen, above n 19, 11; Adrienne Millbank, ‘The problem with the 1951 Refugee Convention’, (Research Paper

5 2000-01, Parliamentary Library, Parliament of Australia, 5 September 2000).

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CONCLUSION What seems clear from examining the second readings83 and Statements of Compatibility with

Human Rights in the explanatory memorandums84 of the new and amending legislation relating

to migration and maritime Australian law, is that the current Government has set very clear,

strict, but fair domestic laws that uphold Australia’s sovereign authority to protect the population

and its borders. At the same time, it is committing domestic laws to their interpretation of

compliance with Australia’s international treaty obligations. Indeed, the Australian Government

confirms that ratifying a treaty does not interfere with Australia’s sovereign rights, but just

influences the way domestic laws are interpreted.85 Regretfully, some operational processes are

not perfect and detention has been protracted caused in part by an extensive backlog from the

previous government by up to 30,000 claims.86 Understandably, this is not a Utopian situation,

and not unexpectedly popular with human rights activists. Considering the global number of

displaced persons, the majority will never have the opportunity to make the journeys that the

relative minority can afford or are physically capable of doing so. Australia cannot resolve the

global refugee crisis, but once Australia has cleared the backlog of claims, what will remain is

Australia’s commitment to investing in a more orderly permanent humanitarian refugee

83 See specifically Commonwealth, Parliamentary Debates, House of Representatives, 25 February 2015, 1201,

1204, 1208, (Peter Dutton); Commonwealth, Parliamentary Debates, House of Representatives, 24 September 2014,

10325 (Scott Morrison); Commonwealth, Parliamentary Debates, House of Representatives, 10 February 2016, 9

(Peter Dutton); Commonwealth, Parliamentary Debates, House of Representatives, 14 October 2014, 11120 (Peter

Dutton); Commonwealth, Parliamentary Debates, House of Representatives, 25 June 2014, 7278 (Scott Morrison);

Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2015, 7488 (Peter Dutton);

Commonwealth, Parliamentary Debates, House of Representatives, 16 September 2015, 10343 (Peter Dutton);

Commonwealth, Parliamentary Debates, Senate, 28 October 2014, 7974 (Fiona Nash); Commonwealth,

Parliamentary Debates, House of Representatives, 12 December 2013, 2590 (Scott Morrison); Commonwealth,

Parliamentary Debates, House of Representatives, 27 March 2014, 3328 (Scott Morrison); 84 See specifically: Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation)

Bill 2014 (Cth); Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential

Provisions) Bill 2016 (Cth); Explanatory Memorandum, Migration Amendment (Complementary Protection and

Other Measures) Bill 2015 (Cth); Explanatory Memorandum, Migration Amendment (Maintaining the Good Order

of Immigration Detention Facilities) Bill 2015 (Cth); Explanatory Memorandum, Migration Amendment (Protection

and Other Measures) Bill 2014 (Cth); Explanatory Memorandum, Migration Amendment (Regaining Control Over

Australia’s Protection Obligations) Bill 2013 (Cth); Explanatory Memorandum, Migration Amendment (Regional

Processing Arrangements) Bill 2015 (Cth); Explanatory Memorandum, Migration and Maritime Powers

Amendment Bill (No 1) 2015 (Cth); Explanatory Memorandum, Migration Bill 2013 (Cth); Explanatory

Memorandum, Migration Legislation Amendment Bill (No 1) 2014 (Cth). 85 Department of Foreign Affairs and Trade, Australian Government, Treaty making process,

<http://dfat.gov.au/international-relations/treaties/treaty-making-process/pages/treaty-making-process.aspx>. 86 Commonwealth, Parliamentary Debates, Senate, 28 October 2014, 7974 (Fiona Nash).

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resettlement process that prioritises on need and available resources. In doing so, it demonstrates

that Australia has not been adversely impeded by its legal obligation to international law and still

able to maintain sovereignty by interdicting people smuggling from countries such as Malaysia

and Indonesia. In contrast, by attempting to fulfil its legal obligations and admiral goals to

provide humanitarian aid by enacting an unsustainably chaotic and hazardous “survival of the

fittest and wealthiest” open border policy, the EU appears to be fighting within, risking not only

losing layers of sovereignty, but possibly imploding altogether.

Word count: 4,615

This is a very impressive piece of work and it was a pleasure to read it. It is wide-ranging,

systematic and coherent. You make very good use of primary and secondary sources. You

could have left out some bits which are not crucial to your discussion of the core issue – for

instance your discussion (which in itself is good) of the link between international law and

Australian law. Most importantly, you could, and should, have engaged more critically

with the legality of Australia’s policy by exposing it to a closer analysis in light of

Australia’s international obligations. In doing so you would then have the opportunity to

show your understanding of the legal regime.

Think about these points, and my comments on the text, and consider how you can apply

them to your essays in other modules.

Mark: 80%

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BIBLIOGRAPHY

A. Articles/Books/Reports ‘Amnesty International condemns Australia's asylum seeker policies, labels counter-terrorism

measures 'regressive' and says global response to terrorist groups 'shameful'’ 24 February

2015, ABC News Online, <http://www.abc.net.au/news/2015-02-25/amnesty-condemns-

australia's-asylum-seeker-policies/6261348>

Austria suspends Schengen agreement, steps up border control, tells EU to sort out migrant

crisis’, RT (17 January 2016) <https://www.rt.com/news/329215-austria-borders-migrants-

schengen/>

Bachelard, Michael and Sarah Whyte, ‘UN representatives criticise Abbott government’s boat

tow-back policy’, The Sydney Morning Herald (23 April 2014)

<http://www.smh.com.au/federal-politics/political-news/un-representatives-criticise-

abbott-governments-boat-towback-policy-20140422-zqxz1>

Balabanova, Ekatarina, ‘Media, Wars and Politics, (Ashgate 2013)

Barker, Cat, ‘The people smugglers’ business model’ (Research Paper No 2, 2012/13, Parliamentary Library, Parliament of Australia, 28 February 2013)

Banulescu-Bogdan, Natalie and Susan Fratzke, ‘Europe’s Migration Crisis in Context: Why now

and what next?’ Migration Information Source (24 September 2015)

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Barbière, Cécile, ‘EU leaders shy away from revamping the asylum policy’, EurActiv (28 April

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Burmester, Henry, ‘National Sovereignty, Independence and the Impact of Treaties and

International Standards’ (1995) 17 Sydney Law Review, 127-149

Chetail, Vincent, Ch 3 - Sources of international migration law in Foundations of International

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Donaghue, Stephen, ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia’ (1995) 17 Adelaide Law Review, 213-267

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Dudman, Jane, ‘UN Envoy: Europe faces daunting task on refugees but housing a human right’, The Guardian, (5 December 2015) http://www.theguardian.com/housing-

network/2015/dec/05/un-envoy-europe-refugees-housing-human-right-leilani-farha>

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for-syrian-refugees/>

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migrant-crisis-merkels-standing-trampled-by-flood-of-migrants/news-story/e2d8bc1db37cf0f7f786814fe6e4bf76>

Gordon, Michael, ‘New UN human rights chief attacks Australia over asylum seeker rights

'violations'’, 7 September 2014, The Sydney Morning Herald, <http://www.smh.com.au/federal-politics/political-news/new-un-human-rights-chief-

attacks-australia-over-asylum-seeker-rights-violations-20140907-10dlkx.html>

Grant, Harriet and John Domokos, ‘Dublin regulation leaves asylum seekers with their fingers burnt’, The Guardian (8 October 2011)

<http://www.theguardian.com/world/2011/oct/07/dublin-regulation-european-asylum-

seekers>

Erasmus, ‘Diverse, desperate migrants have divided European Christians’, The Economist (6 September 2015) <http://www.economist.com/blogs/erasmus/2015/09/migrants-

christianity-and-europe>

‘Europe’s closing borders: Support for free travel contingent on better law and order’, Wall Street Journal (7 January 2016) <http://www.wsj.com/articles/europes-closing-borders-

1452212006>

Holehouse, Matthew, and Melanie Hall, ‘Refugees will freeze to death, EU warns’, The Telegraph (Brussels and Berlin), 25 October 2015

<http://www.telegraph.co.uk/news/worldnews/europe/eu/11954037/Refugees-will-freeze-

to-death-warn-EU-head.html>

Holland, Hereward, ‘Over one million sea arrivals reach Europe in 2015’ UNHCR (Lesvos, Greece), 30 December 2015, <http://www.unhcr.org/5683d0b56.html>

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Human Rights Law Centre, ‘International Community Condemns Australia’s treatment of

asylum seekers during major human rights review at UN’, (Nov 2015) <http://hrlc.org.au/international-community-condemns-australias-treatment-of-asylum-

seekers-during-major-human-rights-review-at-un/>;

Karlsen, Elibritt, ‘Australia’s offshore processing of asylum seekers in Nauru and PNG: a quick

guide to the statistics’ (Research Paper Series, 2015-16, Parliamentary Library, Parliament of Australia, 2015)

Karlsen, Elibritt, ‘Refugee resettlement to Australia: What are the facts?’ (Research Paper Series,

2014-15, Parliamentary Library, Parliament of Australia, February 2015)

Kenny, Chris, ‘Changing the truth: digital media is distorting mainstream coverage’,

The Australian, (Sydney) 21 December 2013,

<http://www.theaustralian.com.au/opinion/columnists/changing-the-truth-digital-media-is-

distorting-mainstream-coverage/story-fn8qlm5e-1226787762364>

Lyons, Patrick J, ‘Explaining the Rules for Migrants: Borders and Asylum’, The New York

Times, (16 September 2015) <http://www.nytimes.com/2015/09/17/world/europe/europe-

refugees-migrants-rules.html?_r=0>

Maguire, Amy, ‘Why does international condemnation on human rights mean so little to

Australia?’ 4 February 2016, The Conversation, <http://theconversation.com/why-does-

international-condemnation-on-human-rights-mean-so-little-to-australia-53814>

Maley, Paul and Peter Alford, ‘Smugglers' distress call rescue tactic’, The Australian, 12 July

2012, <http://www.theaustralian.com.au/national-affairs/immigration/smugglers-distress-

call-rescue-tactic/story-fn9hm1gu-1226423932962>

Matthews, Antonia, ‘Not so liberal now: Europe’s open doors closing fast’, CNBC – Europe

News, (6 January 2016) <http://www.cnbc.com/2016/01/06/not-so-liberal-now-europes-

open-doors-closing-fast.html>

McCathie, Andrew, ‘European Migrant Crisis: Young asylum seekers could be solution to

Germany’s economic challenges’, ABC News (Berlin) 16 September 2015

<http://www.abc.net.au/news/2015-09-09/europe-refugee-crisis-could-be-germany-

economic-silver-lining/6760756>

Malm, Sara, ‘Syrian wives and mothers left behind condemn men who have fled the country…’,

Daily Mail Australia, (8 October 2015) <http://www.dailymail.co.uk/news/article-

3263593/Syrian-wives-mothers-left-condemn-men-fled-country-ask-free-protect-wrong-

leave-country.html>

Melchior, Jillian Kaye ‘Why so many of Europe’s migrants are men?’, National Review, (12

October 2015) <http://www.nationalreview.com/article/425398/why-europes-migrants-are-

men

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Miles, Tom, ‘Children on Syrian refugee route could freeze to death: UN’, Reuters (Geneva), 19 January 2016 <http://www.reuters.com/article/us-europe-migrants-winter-

idUSKCN0UX1SB>

Mohdin, Aamna, ‘When refugee camps last for three generations, we must accept they’re going

nowhere’, SBS News (2 December 2015) <http://www.sbs.com.au/news/article/2015/12/01/when-refugees-camps-last-three-

generations-we-must-accept-theyre-not-going>

‘NATO’s role in relation to the conflict in Kosovo’ NATO (15 July 1999) <http://www.nato.int/kosovo/history.htm>

Neske, Mattias, ‘Human Smuggling to and through Germany’, (2006) International Migration,

44(4), 121-163

‘Older Syrian refugees ‘forgotten’ by aid agencies’, Age International

<https://www.ageinternational.org.uk/latest-news/Older-Syrian-refugees-forgotten-by-aid-

agencies-claims-new-report--/>

Owens, Jared, ‘UN Human rights review slams Australia’s asylum seeker policies’ 12 November

2015, The Australian, <http://www.theaustralian.com.au/national-affairs/immigration/un-

human-rights-review-slams-australias-asylum-seeker-policies/news-

story/29a4c5e8b0ecf94a327f7fe822dfec07>

Peter, Laurence, ‘Migrant Crisis: Who does the EU send back?’ BBC News, (9 September 2015)

<http://www.bbc.com/news/world-europe-34190359>

Phillips, Janet, ‘A comparison of Coalition and Labor Government Asylum Policies in Australia since 2001’ (Research Paper Series, 2013-14, Parliamentary Library, Parliament of

Australia, 2014)

Phillips, Janet, ‘Asylum seekers and refugees: a quick guide to key Parliamentary Library publications’ (Research Paper Series, 2013-14, Parliamentary Library, Parliament of

Australia, 2014)

Phillips, Janet, ‘Asylum seekers and refugees: what are the facts?’ (Research Paper Series 2014-15, Parliamentary Library, Parliament of Australia, 2 March 2015)

Phillips, Janet, ‘Boat arrivals and boat ‘turnbacks’ in Australia since 1976: a quick guide to the

statistics’ (Research Paper Series, 2015-16, Parliamentary Library, Parliament of Australia,

2015)

Phillips, Janet, and Harriet Spinks, Boat arrivals in Australia since 1976; Migrant Smuggling

Working Group (MSWG), ‘Statistics and other data’, MSWG website,

http://www.law.uq.edu.au/migrantsmuggling-statistics

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Press Association, ‘Fresh battle awaits Cameron as EU plans to scrap ‘Dublin regulation’’, The

Guardian (20 January 2016) <http://www.theguardian.com/uk-news/2016/jan/20/fresh-battle-awaits-cameron-as-eu-plans-to-scrap-dublin-regulation>

Rachel Reilly, ‘Disabilities among Refugees and conflict-affected populations’ Forced

Migration Review (July 2010) <http://www.fmreview.org/disability-and-

displacement/rachael-reilly.html>

Rettner, Rachael, ‘Lung Donor System: How kids may slip through the cracks’, Live Science (6

June 2013) <http://www.livescience.com/37248-lung-donation-priority.html>.

Henry Samuel, ‘Refugees shun France, land of red tape, unemployment and poor housing’, The

Telegraph (Paris), 21 September 2015,

<http://www.telegraph.co.uk/news/worldnews/europe/france/11880391/Refugees-shun-

France-land-of-red-tape-unemployment-and-poor-housing.html>

Samuel, Henry, ‘Refugees shun France, land of red tape, unemployment and poor housing’, The

Telegraph (Paris), 21 September 2015,

<http://www.telegraph.co.uk/news/worldnews/europe/france/11880391/Refugees-shun-

France-land-of-red-tape-unemployment-and-poor-housing.html>

Solana, Javier, ‘NATO’s Success in Kosovo’ (1999) Foreign Affairs 78(6), 114-120

Spinks, Harriet, ‘Destination Anywhere? Factors affecting asylum seekers’ choice of destination country’, (Research Paper 1, 2012-2013, Parliamentary Library, Parliament of Australia,

2013)

The State of the World’s Human Rights’ (2015) Amnesty International Report 2014/15 Triggs, Gillian, ‘Australia's Ratification of the International Covenant on Civil and Political

Rights: Endorsement or Repudiation?’ (1982) 31 British Institute of International and

Comparative Law 2, 278-306

UNHCR, ‘Over one million sea arrivals reach Europe in 2015’, UNHCR (online), 30 December

2015 <http://www.unhcr.org/5683d0b56.html>

Williams, George, Sean Brennan & Andrew Lynch (eds), Ch 20 – International Law and the External Affairs Power in ‘Australian Constitutional Law and Theory’, 6th ed (2014

Federation Press)

‘Worldwide displacement hits all time high as war and persecution increase’ UNHCR (Geneva),

18 June 2015, <http://www.unhcr.org/558193896.html>

Zolberg, Aristide R., ‘Changing Sovereignty Games and International Migration’ (1994) Fall

Global Legal Studies Journal 2(1), 153-169

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B. Cases

CPCF v Minister for Immigration and Border Protection (2015) 89 ALJR 207

Jago v District Court of New South Wales (1988) 12 NSWLR 558 M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Plaintiff M61/2010E v Commonwealth of Australia &Ors/Plaintiff M69 of 2010 v

Commonwealth of Australian & Ors [2010] HCA 42

Plaintiff M68/2015 v Minister for Immigration and Border Protection [2015] HCA 1

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32

R v Baco (2011) 29 NTLR 221

C. Legislation

Australian Border Force Bill 2015 (Cth)

Commonwealth of Australia Constitution Act 1900 (Imp)

Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 (Cth)

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

Maritime Powers Act 2013 (Cth)

Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 (Cth)

Migration Amendment (Charging for a Migration Outcome) Bill 2015 (Cth)

Migration Amendment (Complementary Protection and Other Measures) Bill 2015 (Cth)

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill

2015 (Cth)

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Migration Amendment (Protection and Other Measures) Bill 2014 (Cth)

Migration Amendment (Regional Processing Arrangements) Bill 2015 (Cth)

Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 (Cth)

Migration and Maritime Powers Amendment Bill (No 1) 2015 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy

Caseload) Bill 2014 (Cth)

Migration Act 1958 (Cth)

Migration Bill 2013 (Cth)

Migration Legislation Amendment Bill (No 1) 2014 (Cth)

Migration Regulations 1994 (Cth)

D. Treaties

Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into

force 24 October 1945)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Elimination of All Forms of Discrimination against Women, opened for signature, 7 November 1967, 1249 UNTS 13 (entered into force 18 December 1979)

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137

(entered into force 22 April 1954)

Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007,

2515 UNTS 3 (entered into force 3 May 2008)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3

(entered into force 2 September 1990)

International Convention for the Protection of All Persons from Enforced Disappearance,

opened for signature 20 December 2006, UN Doc A/RES/61/177 (entered into force 23 December 2010)

International Covenant on Economic, Social and Cultural Rights, opened for signature 16

December 1966, 993 UNTS 3 (entered into force 3 January 1976).

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International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302; (entered into force 23 March 1976)

International Convention on the Elimination of All Forms of Racial Discrimination, opened for

signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). International Convention on the Protection of the Rights of All Migrant Workers and Members of

their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force

1 July 2003)

Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15

November 2000, GA Res 55/25, 2241 UNTS 507 (entered into force 28 January 2004)

Protocol relating to the Status of Refugees, opened for accession 31 January 1967, 606 UNTS

267 (entered into force 4 October 1967)

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and

Children, supplementing the United Nations Convention against Transnational Organized

Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003)

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331

(entered into force 27 January 1980)

E. Other

‘Asylum and Migration – Statistics Illustrated’, Eurostat,

<http://ec.europa.eu/eurostat/web/asylum-and-managed-migration/statistics-illustrated>

‘Asylum Quarterly Report – Statistics Explained’, Eurostat, (10 December 2015) <http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report>

Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters

Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12 Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2010, 271

(Robert McClelland)

Commonwealth, Parliamentary Debates, House of Representatives, 12 December 2013, 2590 (Scott Morrison)

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Commonwealth, Parliamentary Debates, House of Representatives, 27 March 2014, 3328 (Scott

Morrison)

Commonwealth, Parliamentary Debates, House of Representatives, 25 June 2014, 7278 (Scott

Morrison)

Commonwealth, Parliamentary Debates, House of Representatives, 24 September 2014, 10325 (Scott Morrison);

Commonwealth, Parliamentary Debates, House of Representatives, 14 October 2014, 11120

(Peter Dutton)

Commonwealth, Parliamentary Debates, House of Representatives, 25 February 2015, 1201,

1204, 1208 (Peter Dutton)

Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2015, 7488 (Peter Dutton)

Commonwealth, Parliamentary Debates, House of Representatives, 16 September 2015, 10343

(Peter Dutton)

Commonwealth, Parliamentary Debates, House of Representatives, 10 February 2016, 9 (Peter

Dutton)

Commonwealth, Parliamentary Debates, Senate, 28 October 2014, 7974 (Fiona Nash)

Department of Foreign Affairs and Trade, Australian Government, Treaty making process,

<http://dfat.gov.au/international-relations/treaties/treaty-making-process/pages/treaty-

making-process.aspx>

Department of Immigration and Citizenship (DIAC), Asylum trends, Australia 2010–11, DIAC,

Canberra, 2011, p. 26,

<http://www.immi.gov.au/media/publications/statistics/asylum/_files/asylum-trends-aus-annual-2010-11.pdf>

Department of Immigration and Border Protection, Australian Government, Asylum Trends

Australia: 2012-13 Annual Publication (2013)

Explanatory Memorandum, Australian Border Force Bill 2015 (Cth)

Explanatory Memorandum, Human Rights (Parliamentary Scrutiny) Bill 2010

Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation)

Bill 2014 (Cth)

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Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential

Provisions) Bill 2016 (Cth)

Explanatory Memorandum, Migration Amendment (Complementary Protection and Other

Measures) Bill 2015 (Cth);

Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 (Cth)

Explanatory Memorandum, Migration Amendment (Regaining Control Over Australia’s

Protection Obligations) Bill 2013 (Cth)

Explanatory Memorandum, Migration Amendment (Regional Processing Arrangements) Bill

2015 (Cth)

Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014 (Cth);

Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No 1) 2015 (Cth);

Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum

Legacy Caseload) Bill 2014 (Cth)

Explanatory Memorandum, Migration Bill 2013 (Cth)

Explanatory Memorandum, Migration Legislation Amendment Bill (No 1) 2014 (Cth)

International Law Commission, ‘Draft Articles on Responsibility of States for Internationally

Wrongful Acts’ (UN Doc Supplement No 10 (A/56/10), United Nations, 2001)

Parliament of Australia, Parliamentary Joint Committee on Human Rights,

<http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights>

Parliament of Australia, Transcript of the Hon. Tony Abbott MHR joint doorstop interview with

Mr Craig Laundy, Liberal candidate for Reid, Sydney, 12 July 2012,

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2

Fpressrel%2F1829854%22

‘Patient Info: Organ Donation: Kidney transplants and organ transplantation’, Patient,

<http://patient.info/doctor/organ-donation-pro>.

The Coalition’s Operation Sovereign Borders Policy, Liberal Party of Australia, July 2013

United Nations Office on Drugs and Crime, Issue Paper: A Short Introduction to People

Smuggling, Un Doc (2010)

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United Nations High Commissioner for Refugees, Asylum levels and trends in industrialized

countries 2011: statistical overview of asylum applications lodged in Europe and selected non-European countries, UNHCR, 2012, <http://www.unhcr.org/4e9beaa19.html>

United Nations High Commissioner for Refugees, Asylum levels and trends in industrialized

countries 2014: statistical overview of asylum applications lodged in Europe and selected

non-European countries, UNHCR, 2015, <http://www.unhcr.org/551128679.html>

United Nations High Commissioner for Refugees, Indonesia Factsheet, August 2015, UNHCR

website <http://www.unhcr.org/pages/49e488116.html>

United Nations High Commissioner for Refugees, Malaysia Factsheet, August 2015, UNHCR

website <http://www.unhcr.org.my/Resources-@-Fact_Sheets_.aspx>

United Nations High Commissioner for Refugees, Refugees/Migrants Emergency Response –

Mediterranean Regional Overview, (2016) UNHCR <http://data.unhcr.org/mediterranean/regional.php>.

United Nations High Commissioner for Refugees, Syria Regional Refugee Response -

Interagency Information Sharing Portal’ (17 February 2016) <http://data.unhcr.org/syrianrefugees/regional.php#>