Climate change, non-refoulement and the ICCPR: an Australian perspective

The UN Human Rights Committee recently published its decision in Teitiota v New Zealand, which appears to be the first case in which the Committee has held that the effects of climate change may trigger non-refoulement obligations under the International Covenant on Civil and Political Rights (at [9.11]):

The Committee is of the view that without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.

Mr Teitiota’s case and his claim to be a climate change refugee attracted significant media attention as it wound its way through the appellate process in New Zealand. Mr Teitiota was ultimately unsuccessful in his appeals and, on the particular facts of his case, the UN Human Rights Committee agreed New Zealand did not violate his rights under the ICCPR. Nonetheless, it is interesting that both the New Zealand Supreme Court and subsequently the Committee expressly contemplated the possibility that, in an appropriate case, the effects of climate change may enliven a state party’s non-refoulement obligations.

This raises the question: could such an application succeed in Australia? There would certainly be significant challenges. Since the commencement of the complementary protection regime in 2012, Australia has incorporated its non-refoulement obligations under the ICCPR (as well as other treaties) into domestic law in a somewhat idiosyncratic fashion.

Generally speaking, s 36(2)(aa) of the Migration Act 1958 provides that a person is eligible for the grant of a protection visa if they can establish that there is a real risk that they will suffer “significant harm” as a necessary and foreseeable consequence of being removed from Australia to a receiving country. “Significant harm” is defined and relevantly includes arbitrary deprivation of life (s 36(2A)(a)), cruel or inhuman treatment or punishment (s 36(2A)(d)) and degrading treatment or punishment (s 36(2A)(e)), broadly corresponding to the rights protected by articles 6 and 7 of the ICCPR as considered by the Committee in Teitiota.

In the Australian context, arbitrary deprivation of life has been found to require conduct by a third party: EZC18 v Minister for Home Affairs [2019] FCA 2143 at [47]; SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 at [43]-[44]. It may be difficult for an applicant relying on harm arising from the effects of climate change to identify what conduct exposes them to a risk of being arbitrarily deprived of life. Indeed, this was a significant difficulty encountered by Mr Teitiota, given the Republic of Kiribati was in fact found to be taking adaptive measures to reduce the effects of climate change.

If relying on cruel, inhuman or degrading treatment or punishment, an applicant is likely to encounter an additional difficulty in that the definitions of those terms in the Australian legislation imports an intent element not found in the text of the ICCPR, and which has been interpreted by the Australian courts as requiring actual, subjective intent: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [26], [144]. There are obvious difficulties in establishing that the authorities of a country had an actual, subjective intention to cause pain or suffering through their conduct in relation to the effects of climate change.

Finally, regardless of the type of harm relied on, the Australian legislation provides that there is not a real risk of harm if the risk is one faced by the population of the country generally and not by the applicant personally (s 36(2B)(c)), which may impose an additional barrier. The intent of this exclusionary provision is somewhat opaque and was not explained in either the Explanatory Memorandum or the Second Reading Speech. The Federal Court has interpreted s 36(2B)(c) to require some discriminatory reason or differential treatment for complementary protection to be engaged (SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]-[15]), although an earlier decision of the Federal Circuit Court accepted that serious human rights violations that are so widespread or severe that almost anyone would potentially be affected by them may disclose a sufficiently real and personal risk: SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884 at [36], [49]. The effects of climate change may conceivably fall into the latter category, whereas it is more difficult to envisage how an element of differential treatment or discrimination could be established.

However, since s 36(2B)(c) relates to a risk faced by the population of the country generally, the Federal Court has found that a risk that a person is exposed to due to their residence in specific area of the country is a risk faced personally: BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 at [37]-[38]. This could conceivably provide a pathway where the relevant risks caused by the effects of climate change affect only part of a country, although the applicant would then have to demonstrate why it would not be reasonable to relocate to a different area of the country (s 36(2B)(a)).

It remains to be seen whether such an application could succeed. Ultimately, the comments of the Committee in Teitiota v New Zealand raise interesting questions of international and domestic law which will no doubt be tested in future.