In 2014, the UN Human Rights Committee (HRC) made its internal relocation alternative debut in B.L. v. Australia. Internal relocation alternative (also known as "internal flight alternative"), concerns weighing the possibility of relocation for an asylum seeker in her/his country of origin as a ground for refusing refugee status.
In this post I argue that in the case of B.L. v. Australia the HRC has made either a careless or a disappointing start in clarifying how it employs the internal relocation alternative and this might negatively affect refugee protection under ICCPR.
What Does International Law Say About Internal Relocation Alternative?
Under current international law, internal relocation alternative is not a pre-requisite per se to apply for asylum. The doctrine is not regulated under the Convention Relating to the Status of Refugees (‘Refugee Convention’) or its Protocol Relating to the Status of Refugees. The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, on the other hand, explicitly rejects the internal flight alternative doctrine.
Despite the absence of a legal prerequisite to exhaust all other options available in the country of origin, internal relocation alternative has been used widely by states in refugee status determination (A study on practices of different states can be found here and here [PDF]). It has also been recognized as a factor in refugee status determinations by human rights courts and quasi judicial bodies (For EU and ECHR Law see here [PDF]; for CAT Committee’s jurisprudence see here at page 8 and for CEDAW Committee’s jurisprudence see here).
The Human Rights Committee and B.L. v. Australia
Although the internal relocation alternative has been mentioned in some individual opinions of the HRC members (see e.g. Individual Opinion of Mr. Yuji Iwasawa in Pillai et al. v. Canada), the majority has not relied on the doctrine when reaching a conclusion in HRC views. That is, of course, until the case that is the subject of this post: B.L. v Australia. Before examining where the HRC stood in B.L. v. Australia, let's have a quick look at the facts of the case and the decision of the Committee.
BL was born into a Muslim family in Touba, Senegal. When BL converted to Christianity in 1994, he had been attacked both by his family and the Mourides Brothers, a large Sufi order which is politically and culturally very effective in Senegal. Although BL left his hometown, the brotherhood found him again. When BL reported to the police that his life was threatened, he was told him that there was nothing they could do. Feeling unsafe, BL went forth and back between Senegal and South Africa and finally in 2008 he left Senegal for Australia. BL application for a protection visa before Australian authorities was rejected. After exhausting available remedies in Australia, BL filed a complaint before the Human Rights Committee.
When deciding whether deportation to Senegal would violate BL';s right to life, prohibition of torture and right to freedom of thought, conscience and religion, the Committee reasoned that:
the author has not put forward any other reason why he could not relocate within Senegal” and “it would not be unreasonable to expect him to settle in a location, especially one more distant from Touba, where such protection would be available to him.
Consequently, the Committee concluded that although BL disagreed with the Australian authorities on their factual findings, he failed to show why they were manifestly unreasonable. The HRC did not find any violation of BL's rights provided that he would be returned to a place where adequate and effective protection is available.
Although the Committee did not refer to the internal relocation alternative per se as the core doctrinal basis of its decision, it appears that it grounded its decision on the said doctrine. Or did it?
The ambiguous status of internal allocation alternative in B.L. v. Australia
When we look at the individual opinions of the Committee members we see that the members themselves were of different opinions on the meaning of the Committee’s words. Mr. Gerald L. Neuman and Mr Yuji Iwasawa said that the decision reflected the well-established principle of internal flight alternative. It is interesting to note that Mr. Gerald L. Neuman and Mr Yuji Iwasa referred to the internal flight alternative as ‘a basic rule of international refugee law’. This is in clear contradiction with the UNHCR Position Paper [PDF], which states that the internal relocation alternative does not amount to ‘a principle of refugee law’, but rather merely a factor in determination of refugee status. Mr Dheerujlall Seetulsingh endorsed Neuman and Iwasa’ opinions and further argued that the burden was not upon Australia to prove that B.L. would be returned to a place in Senegal where he could avail himself of State protection, but rather it was upon B.L. to prove why he could not be relocated in another place in Senegal.
Mr Fabián Omar Salvioli, had a completely different opinion. He pointed out that the Committee had never based its decisions on the internal relocation alternative doctrine and, according to him, this case should be no exception either. He argued that the Committee should not have said that B.L. failed to prove why he should not be relocated in Senegal or that it was not unreasonable for him to resettle in a location away from Touba. The HRC’s reasoning, Salvioli argued, should have been that B.L. failed to prove that his claims were ‘beyond reasonable doubt’. If there were a genuine risk, regardless of the fact that there were safer locations in the country, there would have been violations of Article 6 or Article 7 of the ICCPR.
In my opinion, these contradictory opinions of the Committee members show that this case was not an official endorsement of the internal relocation alternative doctrine by the Committee, but rather show how difficult it can be to reach a common decision in certain cases.
What does this imply for refugee protection under ICCPR?
The internal relocation alternative is not a simple doctrine that can be applied with one mere sentence on the failure of the author to submit reasons as to why he could not relocate in another part in his home country. The UNHCR provides substantive and procedural safeguards when applying internal relocation alternative. These safeguards, however, were neither applied nor discussed in B.L. v. Australia. As pointed out by UNHCR here, such improper applications of internal relocation alternative has the potential to threaten the right to seek asylum as well as prohibition of refoulement.
First, if we accept that the Committee applied the internal relocation alternative in B.L. v. Australia, it has to be identified as one criterion among others. The Committee, instead, merely pointed out that B.L. failed to provide reasons why he could not relocate in another part in Senegal. The internal relocation alternative, however, should have been applied as a part of a holistic assessment of refugee status.
According to the UNHCR guidelines, relevance and reasonableness analyses are to be carried out in the context of a full assessment of refugee status. The relevance test focuses on whether the area of relocation is practically, safely and legally accessible; whether the agent of persecution is a state agent or a non-state agent, and; whether there would be risk of persecution upon relocation. The reasonableness test, for its part, looks at whether the person concerned would be able to have a normal life in the place of relocation.
In B.L. v. Australia, however, the Committee did not focus on any of these questions. Taking into account the Committee’s practice of deference to domestic authorities (see e.g. Tarlue v Canada, P.K. v Canada and Z. v Australia ), the fact that Australian authorities omitted to address any of the question set out in the relevance and reasonable analyses, could indeed have lead the Committee to consider that the national courts decision was arbitrary or amounted to a miscarriage of justice and thus enabled the Committee to evaluate the facts and evidence.
There are also procedural issues that the Committee should have considered. The first such issue is the country of origin information. According to UNHCR guidelines in cases where internal relocation alternative is relied upon, a particular area must be identified, rather than an unspecified description of another region of the origin country. In the present case, however, the majority opinion of the Committee failed to concede that the facts before it did not indicate that Australia identified a particular area where Mr. B.L. could avail from state protection.
Another issue here is burden of proof. UNHCR’s guidelines provide that the party claiming internal relocation alternative is applicable should establish that there is a specific safe location where effective and adequate protection is available. Then, the person in question needs to prove why the relocation place is not relevant or reasonable. In the present case, however, the Committee’s position on burden of proof was somehow self-contradictory. Although there was nothing in the facts to suggest that Australia established a specific safe location during the course of refugee status determination, the Committee noted that Mr. B.L. failed to show why he could not relocate within Senegal. While it appears that the Committee placed the burden of proof upon B.L., it later set forth that B.L.’s removal would not violate ICCPR provided that Australia determined a specific safe location.
Given that the definition of a refugee and the scope of non refoulement is limited under the Refugee Convention, generally applicable international human rights norms, including ICCPR, provide protection for those not covered by the Refugee Convention. Accepting that HRC endorsed the internal relocation alternative without any of the established safeguards means narrowing the scope of non refoulement to a dangerous level and compromises one of the few protection mechanisms available to millions of people who do not qualify as refugees under the Refugee Convention.
Conclusion: Did the HRC Accept the Internal Relocation Alternative?
Returning to our main question of whether or not the Committee accepted the internal relocation alternative, I am still hold the opinion that it did not, at least not yet. Although I concede that the Committee’s choice of words is ambiguous, such ambiguity probably serves the purpose of reconciling the contrasting opinions of different Committee members. Whatever the reason behind this wording might be, it seems we still need more, and better reasoned, decisions to determine the position of the HRC on this issue. If the Committee adopts more views in line with internal relocation alternative doctrine, it is necessary that the concept is not used in a way that impedes right to seek asylum and prohibition of refoulement.
Kübra Berberoğlu has graduated from Koc University Law School in June 2016. She is currently completing her double major with International Relations. She has been working as an Oxford Human Rights Law Reporter since February 2015 and preparing headnotes analyzing the case law of the United Nations human rights treaty bodies. Her interests include international law, human rights, immigration and refugee law.
Suggested citation: Kübra Berberoğlu, Internal Relocation Alternative: Where Does Human Rights Committee Stand?, JURIST - Hotline, Feb. 06, 2017, http://jurist.org/hotline/2017/02/Kübra-Berberoğlu-Internal-Relocation-Alternative.php
This article was prepared for publication by Yuxin Jiang, a Senior Editor for JURIST Commentary service. Please direct any questions or comments to her at email@example.com