A Sometimes Dangerous Convergence: Refugee Law, Human Rights Law and the Meaning of 'Effective Protection'

In late 2011 the High Court of Australia and the European Court of Justice made rulings on the conditions under which asylum seekers can be transferred to a third country. The High Court of Australia held that asylum seekers cannot be transferred unless they will be protected from persecution and be entitled to all of the rights outlined in the Refugee Convention. However, four months later the European Court of Justice set the threshold much lower. It ruled that a transfer could occur unless the asylum seeker would be subject to persecution or inhuman or degrading treatment. These sharply contrasting decisions raise wider issues for refugee protection especially in light of the desire for a harmonious interpretation of the Refugee Convention. Such a result is also surprising given the proliferation of human rights instruments and jurisprudence in the European Union, compared to Australia's lack of a national human rights framework. This article will use these cases to demonstrate that, while some courts have drawn on principles of human rights law to progressively interpret the Refugee Convention, the nature of protection in the Refugee Convention is both distinct from and beyond the preservation of fundamental human rights. Accordingly, reference to principles of human rights law in transfer decisions can have the counter-productive effect of lowering the threshold for 'effective protection'. This raises the need for critical examination of the boundaries of human rights and refugee law and consideration of the extent to which they should remain distinct bodies of law.