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17 - Limits on protection of refugees – cessation, exclusion exceptions and protection by another country

Published online by Cambridge University Press:  05 June 2012

Mirko Bagaric
Affiliation:
Deakin University, Victoria
Athula Pathinayake
Affiliation:
Deakin University, Victoria
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Summary

Overview of exclusion, cessation and exceptions

The Refugees Convention sets out a number of circumstances where the protection obligations by states towards refugees are limited or expunged. The duty of states to protect refugees is limited in seven broad circumstances. These are set out in:

  • Article 1C – which defines several circumstances where refugee status ceases to exist;

  • Article 1D – which excludes from the Convention persons who receive protection from certain UN organs;

  • Article 1E – which excludes persons who can obtain access to a third country;

  • Article 1F – which excludes individuals who have committed specified criminal acts;

  • Article 32 – which permits expulsion of a refugee where the refugee is a security danger;

  • Article 33(2) – which permits expulsion where there are grounds to believe that the refugee has been convicted of a ‘particularly serious crime’; and

  • in addition to this, a person is not entitled to protection in Australia where he or she can receive protection in a third country.

The overarching rationale for the exceptions is that either the protection obligations to refugees only arise as a matter of last resort or a State's security interests trumps its obligations to needy foreigners.

Article 1C applies where refugee status has already been conferred and sets out the circumstances in which refugee status can be lost: that is, where refugee status ceases. The exclusions contained in Articles 1D to 1F relate to situations where a person has not yet been granted refugee status. Articles 32 and 33(2) are properly categorised as exceptions, in that they apply where refugee status has been conferred and operate to expunge a state's protection obligations on the basis of national interest. Where a person is eligible to receive protection in a third country, this is properly classified as an exclusion, since it justifies a state not conferring refugee status.

Type
Chapter
Information
Migration and Refugee Law
Principles and Practice in Australia
, pp. 270 - 302
Publisher: Cambridge University Press
Print publication year: 2011

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References

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