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.

First things first: What is the 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 explicitly rejects the internal flight alternative doctrine. Indeed, in Article 1(2) it defines a refugee as someone who is compelled to leave his/her home country due to certain factors in ‘either part or the whole of the country of origin’.

Despite this absence of a 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. Under Canadian law, for example, internal relocation alternative has been deemed as an integral part of the 1951 Convention’s refugee definition.  (A study on practices of  different states can be found here and here.)

According to the UNHCR Guidelines internal relocation alternative is neither a ‘stand-alone principle of refugee law’, nor an ‘independent test’ in refugee status determination (para 2). The UNHCR Position Paper further emphasizes that the internal relocation alternative should be taken into account as one of the factors to be considered in the course of refugee status determination (para 7).

The UNHCR Position Paper  is concerned that the internal relocation alternative has been used by States as a means to prevent refugees from having access to refugee status determination (para 2). UNHCR states that even when internal relocation alternative is applied as a part of the refugee status determination process, States fail to apply it properly (para 2). Such practices (again as put forward by UNHCR here at para 4) have the potential to threaten the right to seek asylum as well as various provisions of the 1951 Convention such as prohibition of expulsion under Article 32 and prohibition of refoulement under Article 33.

What have other human rights courts and quasi-judicial bodies said about internal allocation alternative?

Despite its explicit absence within the Refugee Convention framework, the internal allocation doctrine has been recognized as a factor in refugee status determinations by human rights courts and quasi judicial bodies.

The European Union (EU) Law and the European Convention of Human Rights (ECHR) law both allow for the consideration of internal allocation alternative in refugee status determinations. As for EU, Article 8 of Qualification Directive sets forth that Members may take into account internal relocation alternative in their refugee status assessments. As for ECHR law, despite the absence of internal relocation alternative in the Convention, the European Court of Human Rights held in various cases that Article 3 did not preclude state parties from relying on the internal flight alternative provided that there were certain guarantees, namely that the person must be able to travel to the relevant area, obtain admittance and settle there (See e.g.  Salah Sheekh v. The Netherlands  para 141 and Sufi and Elmi v. the United Kingdom para  266, M.Y.H. v Sweden para 62).

The UN Committee against Torture has also relied on the doctrine in various cases (See e.g. H.M.H.I. v Australia para 6.6, B.S.S  v. Canada para 11.5 ) However, when the Committee makes determinations of gross and systematic human rights violations in a country, it does not accept the claim that the individual can relocate in another parts of the origin country. (See e.g. Hayden v Sweden para 6.4, Ismail Alan v Switzerland para 11.4  and Orhan Ayas v Sweden para 6.4.)

The Committee on the Elimination of Discrimination against Women also appears to accept the doctrine. In S.O. v Canada, the Committee concluded that the applicant insufficiently substantiated her claims since she, inter alia, failed to provide why she could not relocate elsewhere in Mexico (para 9.6). Nonetheless, as the case-law of CEDAW is very limited on this issue and we need more views to reach a more certain conclusion.

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, para 4), 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, lets have a quick look at the facts of the case and the decision of the Committee.

B.L. was born into a Muslim family in Touba, Senegal. When B.L. 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 B.L. left his hometown, the brotherhood found him again. When B.L. reported to the police that his life was threatened he was told him that there was nothing they could do.  Feeling unsafe, B.L. went forth and back between Senegal and South Africa and finally in 2008 he left Senegal for Australia. B.L. application for a protection visa before Australian authorities was rejected. After exhausting available remedies in Australia, B.L. finally filed a complaint before the Human Rights Committee (para 2.1 and 2.10)

When deciding whether deportation to Senegal would violate B.L.’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 B.L. 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 B.L.’s rights provided that he would be returned to a place where Australia determined he would be able to avail from adequate and effective State protection. (para 7.4).

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.S. 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 (p. 12).  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, 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. (p. 13)

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 (p. 14).

The contradictory opinions of the Committee members show that this case was not an official endorsement of the internal relocation alternative doctrine by the Committee. The Committee’s choice of words was rather ambiguous. Given that the internal relocation doctrine is not a novel concept and has been discussed widely in refugee law, had the Committee been willing to explicitly accept the internal relocation alternative, it could have simply referred to it.

There may be several reasons why the Committee opted for an ambiguous position. It could, for example, serve the purpose of reconciling the contrasting opinions of different Committee members or it could be that the Committee merely wanted to reflect the stand point of Australia and the wording should be understood within the context of deference to national authorities for fact finding and evaluation of evidence in migration proceedings.  Whatever the reason behind this wording could be, what is certain is that this one ambiguously worded view is not sufficient to determine HRC’s legal position.

What does this imply for refugee protection under ICCPR?

The internal relocation alternative is not a simple doctrine which 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. As pointed out by UNHCR  here,  even if  the doctrine is accepted, there are safeguards to be followed when applying internal relocation alternative (para 4).

First, if we accept that the Committee applied the internal relocation alternative in B.L. v. Australia, it had 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, is to be applied as a part of holistic assessment of refugee status (para 6).

According to the UNHCR guidelines,  relevance and reasonableness analyses are to be carried out in the context of a full assessment of refugee status (para 7).  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 (para 8-30).

In B.L. v. Australia, however, the Committee did not focus on any of these questions. Despite the Committee’s practice of deference to domestic authorities (see e.g. Tarlue v Canada at para 7.4, P.K. v Canada at para 7.3 and Z. v Australia at para 9.3), the Committee should have looked at whether Mr. B.L.’s refugee status was determined according to these tests. While a fact-finding mechanism within the Committee might be a bit too far-reaching, there should be at least a bit of flexibility so that the Committee can ensure that refugee status determination is not applied light handedly. The fact that national 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.

Other than the scope of assessment, there are procedural issues that the Committee should have taken into account. 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 (para 37). In the present case, however, the majority opinion of the Committee failed to take into account that the facts before it did not indicate Australia identified a particular area where Mr. B.L. could avail from state protection. Seetulsingh  in his individual opinion took this contradiction with UNHCR guidelines one step further and argued that the obligation of Australia was to ensure that Senegal was a secular state and that Australia should not be required to ascertain a specific location within Senegal.

Another issue related to country of origin information is burden of proof. UNHCR’s guidelines provide that the usual rule must apply as regards burden of proof, i.e. the party claiming internal relocation alternative is applicable should establish that there is a specific safe location where effective and adequate protection is available.  Accordingly, upon such assessment the burden of proof shifts to the asylum seeker, i.e. the person in question needs to prove why the relocation place is not relevant or reasonable (para 33-35).   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 Articles 6 and 7 of ICCPR provided that Australia determined a specific safe location. Another point to be made is that Seetulsingh in his individual opinion thought this general rule on burden of proof would be too high of a burden upon State parties and that the burden should be placed the individual seeking asylum without an a priori obligation upon State parties.

Returning to our main question of whether or not the Committee accepted internal relocation alternative, I am still of the opinion that it did not, at least not yet. Although I concede that the Committee’s choice of words is ambiguous, such ambiguity shows how difficult it can be to reach a common decision in certain cases without formally endorsing internal relocation alternative. The mere fact that 3 Committee members explicitly accepted internal relocation alternative while 1 member rejected it shows that there is a need to compromise among different members of the Committee. It seems we still need more, and better reasoned, decisions to determine the position of the HRC on this issue. In any case, 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.

* A shorter version of the post was published by JURIST on 6 February 2017.