Abstract

This chapter explores the concept of constructive refoulement, particularly in relation to Australian practice. Refoulement, means to force back or turn away and the chapter examines the possible breaches of Article 33 of the Refugee Convention when the state makes life so miserable for a refugee or asylum seeker that he or she ‘decides’ to return home. This amounts to ‘constructive refoulement’. However, it is uncommon to find case law that uses the term, and even less common to find case law in which a court finds a violation that could be described as constructive refoulement. It is also unclear exactly what the threshold for a constructive refoulement would be. The concept, the chapter argues, appears to be an intuitive idea akin to constructive dismissal in labour law, which often occurs when the employer makes life so miserable at work, that the employee ‘chooses’ to resign.