Rewriting Internal Relocation from a Refugee Perspective - The Lived Experience of Refugees in Afghanistan

Abstract

ABSTRACT This article is part of a broader project aimed at rewriting refugee law jurisprudence from a lived refugee perspective. The co-authors, one of whom is a refugee from Afghanistan, have chosen internal relocation as the subject of this project as it is a problematic and controversial principle of international refugee law which we believe is frequently applied without due consideration of the practical experience of refugees. Internal relocation provides that a refugee may be returned to their country of origin if they can relocate to a “safe” part of that state where they would not have a well-founded fear of persecution. This principle is somewhat tempered by the application of a “reasonableness” test in most jurisdictions. That test aims to reflect that, in some cases, it may not be possible to require a refugee to relocate to another part of their country of origin to avoid persecution. However, a “reasonableness” factor is not always considered as part of relocation. Moreover, it aims to bring an “objective” standard of reasonableness, which can be critiqued on a number of bases. In this article, the authors rewrite an Australian Refugee Review Tribunal decision dealing with an applicant from Afghanistan to reflect the lived experience of refugees better and to encourage readers to think about whether some of the assumptions made in internal relocation jurisprudence have been fully interrogated. Much of internal relocation scholarship focuses on conceptual legal issues, for instance, whether relocation is grounded in the text, context or object of the 1951 Convention relating to the Status of Refugees and whether relocation fits within the “well-founded fear” or “state protection” limb of the refugee definition. While these are important conceptual debates about the treaty basis for internal relocation, we believe these have been well-analysed in the existing literature. Our article seeks to add to these core debates by reconceptualising the application of relocation to authentic refugee experiences and, through this, to highlight some of the weaknesses in the current approach to this complex question.