Clare Francis (NYU GSAS) | Kaldor Centre for International Refugee Law | Sydney, Australia
As I approach one month at the Kaldor Centre for International Refugee Law, I am grateful for the generosity of my colleagues, who have welcomed me into the life of the Centre. The Kaldor Centre is based at the University of New South Wales’ (UNSW) Faculty of Law & Justice. I have been auditing the course ‘Forced Migration and Human Rights’, taught by colleagues at the Centre, which has introduced me to the doctrine of international refugee law (IRL) in the Australian context.
The doctrinal complexity of refugee law in Australia is no accident. It functions to deliberately bar asylum seekers and refugees from accessing legal protection. Successive Australian governments have carved out a domestic refugee regime which circumvents Australia’s international obligations under the 1951 Refugee Convention and its 1967 Protocol. The Migration Act 1958 and other legislation, including the Migration Act Amendment 2014, enforce definitions of ‘refugee’ which further limit those provided for under the Refugee Convention.
What does this mean in reality? For example, under Australian law, ‘membership of a particular social group’ does not include occupation. So, if you are persecuted for being a journalist, doctor, or academic, you cannot claim refugee status on that basis alone. Similarly, Australia applies an ‘internal relocation’ test when determining refugee status. Since 2014, this relocation no longer has to be ‘reasonable’. In other words, to claim refugee status in Australia, you should first have tried to relocate within your country of origin, even if you had no means of supporting yourself in the new place of residence.
One the one hand, examples like these might suggest that we can ‘fix’ refugee law in Australia by adhering more closely to international refugee law. Yet, on the other hand—while recognizing the importance of challenging inhumane domestic laws—the course has also emphasized to me the deep structural flaws within IRL itself. The very framing of the refugee definition (Article 1 of the Refugee Convention) through the concept of individual ‘persecution’, for instance, embeds the exclusion of economic migrants from refugeehood.
This relationship—between law and structure—is something I’ve been thinking about through my work at the Centre on climate mobility. In addition to supporting the Centre’s Climate Mobility Hub and writing for their blog, I am working on a paper about the idea of a ‘right to stay in place’ in the context of climate displacement, with support from Professor McAdam and other colleagues. The piece was originally developed as part of my independent research project for the Gallatin Fellowship. It tries to integrate rights-based responses to climate displacement with scholarship on reparations by E. Tendayi Achiume and Olúfẹ́mi O. Táíwò.
At the Centre, I recently attended a talk by Professor Alan Tidwell, who spoke about the role of colonialism and climate exploitation in fuelling migration from small island states, which has in turn eroded their sovereignty. Conversely, Achiume in ‘Migration as Decolonization’ (2019) theorizes migration from the Global South to North as a form of rebalancing which reckons with these historical legacies. This speaks to tensions within the concept of migration itself—what it means for states, communities, those who leave and those who stay. Over the coming weeks, I look forward to thinking through some of these questions.