Refoulement by another means—‘constructive refoulement’ and character-based decisions under the Migration Act 1958 (Cth)

ABSTRACT In 2014, the Federal Government introduced significant reforms to the Migration Act 1958 (the Act) in two tranches. The first involved adaptation of Australia’s obligations under the 1951 Convention relating to the Status of Refugees into a series of codified definitions under the Act. The second suite of reforms expanded the ‘character powers’ under the Act and established a regime of mandatory visa cancellation. The interaction of the ‘protection’ and ‘character’ regimes has generated a vast amount of litigation and created a sizeable population of people deemed ‘undesirable but unreturnable’, subjected to indefinite immigration detention. This article summarises the principles emerging from superior court decisions concerning character powers and non-refoulement obligations and considers the role that the nascent concept of ‘constructive refoulement’ might play in this area. As elaborated in recent decisions of the European Court of Human Rights, ‘constructive refoulement’ refers to practices adopted by a state that compel an asylum seeker to accept repatriation. Employing the concept in character-related decision-making may compel decision-makers, and courts charged with review of decisions, to have closer regard to the prospect of indefinite detention and assess it properly as being on a continuum with forced repatriation.