Minister for Immigration and Border Protection v SZSCA [2014] HCA 45

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, KIEFEL, GAGELER AND KEANE JJ

MINISTER FOR IMMIGRATION AND BORDER PROTECTION APPELLANT

AND

SZSCA & ANOR RESPONDENTS

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 12 November 2014 S109/2014

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

G T Johnson SC with J D Smith for the appellant (instructed by Australian Government Solicitor)

S B Lloyd SC with P D Reynolds for the first respondent (instructed by Fragomen)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Border Protection v SZSCA

Migration – Refugees – Application for protection visa – Where applicant threatened by Taliban – Where Refugee Review Tribunal affirmed decision not to grant protection visa because risk of persecution would only arise on roads outside Kabul, which applicant could avoid – Whether Refugee Review Tribunal fell into error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 – Whether Refugee Review Tribunal failed to address whether it would be reasonable to expect applicant to remain in Kabul.

Words and phrases – "internal relocation principle", "live discreetly", "real chance of persecution", "reasonable to expect", "well-founded fear of persecution".

Migration Act 1958 (Cth), s 36(2)(a). Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Art 1A(2).

FRENCH CJ, HAYNE, KIEFEL AND KEANE JJ. The first respondent ("the respondent") is a citizen of Afghanistan, of Hazara ethnicity, from the Jaghori district in the Ghazni province. He arrived in Australia by boat on 21 February 2012 and subsequently applied for a protection visa. In his application the respondent said that he and his immediate family have lived in Kabul since 2007 and that he has worked as a self-employed truck driver since that time. Prior to that, he worked in Jaghori manufacturing jewellery. The respondent said that his work as a truck driver required him to drive between Kabul, Ghazni and Jaghori. From about January 2011, he began to specialise in the transportation of construction materials between Kabul and Jaghori because it provided him with a higher income. Around late January 2011, the respondent was en route to Jaghori when he was stopped by the Taliban, who warned him not to carry construction and building materials. The respondent explained, in a submission to the Refugee Review Tribunal ("the Tribunal"), that the Taliban considered that, by transporting such materials, he was acting for the government or for foreign organisations. He was released because he said that he was carrying the materials for a shopkeeper and, in his view, because this particular group was "more merciful than other Taliban". Thereafter, he took measures to avoid Taliban checkpoints, although he continued to carry construction materials. In about November 2011, another Hazara truck driver showed the respondent a letter he had been given by the Taliban ("the Taliban letter"). The Taliban letter, a translated copy of which was produced to the Tribunal, was headed "Islamic Emirate of Afghanistan, Ghazni Province, Khogyani District". It alleged that the respondent was "assisting and cooperating with government and foreign organisations in the transportation of logistical and construction materials from Ghazni city to Jaghori and to Malestan district." It called upon "local council people to perform their Islamic duty ... to get rid of this criminal, infidel person." It told them "to take firm action as soon as possible to get rid of this apostate, criminal person on the road from Qarabagh and Janda areas." The respondent said that he decided then to leave Afghanistan and did so 10 days later. The respondent's application for a protection visa was refused by a delegate of the appellant. That decision was affirmed by the Tribunal. Given the nature of the issues on this appeal, it is necessary to refer to the findings of the Tribunal in some detail. The respondent told the Tribunal that he feared that, if he returned to Afghanistan, he would be abducted, abused and/or killed by the Taliban. He also feared that he would be deprived of his ability to make a living. His fears of mistreatment or harm had three bases: his Hazara ethnicity and Shia religion; his membership of a particular social group, namely truck drivers who transport goods for foreign agencies; and his imputed and actual political opinion supportive of foreign agencies. The Tribunal was not satisfied that the Taliban targets Hazara Shias on a systematic and discriminatory basis, or that Afghan truck drivers are persecuted by reason only of their occupation. Nonetheless, the Tribunal accepted that the Taliban generally targets drivers carrying construction materials and discourages them from doing so, and that the Taliban may impute to persons undertaking that activity political opinions supportive of the Afghan government or non-governmental aid organisations. The Tribunal considered it to be quite plausible that the respondent had been warned to desist from such activity. The Tribunal proceeded upon the basis that the Taliban letter was genuine and that the respondent was threatened by it. It accepted that, if the respondent was again intercepted by the Taliban on the roads on which he usually travelled, he would face a real chance of serious harm and even death for a reason specified in the Refugees Convention ("the Convention"), namely the political opinion imputed to him. The Tribunal considered the risk of harm would be greater if he were carrying construction materials. The Tribunal does not appear to have dealt with the matter on the basis of the respondent's claim that, in fact, he held that political opinion. Nor does the Tribunal appear to have attached significance to the description of the respondent in the Taliban letter as an apostate. However, these omissions are not presently in issue. The Tribunal did not accept that the respondent is a high-profile target who would be actively pursued by the Taliban throughout Afghanistan. It viewed him as someone who might be harmed if he came to the Taliban's attention, which would likely only occur if he continued to transport construction materials. There was evidence that the Taliban does not actively pursue and target low-profile persons in Kabul. The area in which the respondent lived in Kabul was predominantly Hazara, where enquiries by the Taliban as to his whereabouts would be conspicuous. The Tribunal observed that, as late as June 2012, the Taliban did not appear to know the respondent's whereabouts. This observation appears to have been drawn from the respondent's statement that, at that time, his brother had advised him that the Taliban was asking about the respondent's whereabouts, having noticed that he was no longer driving on the roads between Kabul and Jaghori. However, this enquiry might also be thought to suggest a level of interest in the respondent on the part of the Taliban. The focus of the Tribunal's determination was upon security in Kabul, which it considered to be "relatively good". It concluded that it was not satisfied that the respondent would face a real chance of persecution if he remained there. It found that the risk of persecution would only arise in the area constituted by the roads on which he had been driving outside of Kabul, and he could avoid this area. It followed that the respondent did not satisfy the criterion for the grant of a protection visa set out in s 36(2)(a) of the Migration Act 1958 (Cth). At a practical level, the Tribunal was of the view that the respondent would not be obliged to travel between Kabul and Jaghori to make a living. It was satisfied that the respondent could obtain employment in Kabul, such as in making jewellery, as he had formerly done in Jaghori. The detailed account of the hearings before the Tribunal, which is contained in the Tribunal's reasons, does not suggest that this matter was put to the respondent by the Tribunal. On the respondent's application to review the Tribunal's decision, the Federal Circuit Court of Australia (Judge Nicholls) ordered that the decision be quashed and that the matter be remitted for determination according to law. A majority of a Full Court of the Federal Court of Australia (Robertson and Griffiths JJ, Flick J dissenting) dismissed an appeal from the Federal Circuit Court's decision. The decisions of the Federal Circuit Court and the majority in the Federal Court referred to what was said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs as relevant to this matter. In that case the Tribunal had accepted that it was not possible for the protection visa applicants to live openly as homosexuals in Bangladesh, but found that they had conducted themselves discreetly and there was no reason to suppose that they would not continue to do so if they returned to that country. Four members of this Court held that, by reasoning in this way, the Tribunal failed to consider the question it had to decide – whether the applicants had a well-founded fear of persecution. The question for the Tribunal was whether there was a real chance that, upon return to Bangladesh, the applicants would be persecuted for a Convention reason. This had not been addressed. In the later case of SZATV v Minister for Immigration and Citizenship, Kirby J said that the two majority judgments in S395 both spoke of the need for the decision-maker to focus attention on the propounded fear of the applicant for a protection visa and whether it was well founded; and to consider that issue on an individual basis and by reference to the individual applicant, not by reference to a priori reasonable conduct, such as living discreetly, which might reduce the risk of persecution. Gummow and Hayne JJ had said in S395 that it is irrelevant to the enquiry whether a fear of persecution is well founded to say that the applicant is to be expected to live discreetly. The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed. In the present case the Tribunal did not fall into the error identified in S395. The critical aspect of the reasoning of the Tribunal in the present case was its finding that the respondent would not face a real chance of persecution if he remained in Kabul and did not travel on the roads between Kabul and Jaghori. The Tribunal found that he would suffer a real chance of harm for a Convention reason if he carried construction material in another area, but that he was safe in Kabul. In contrast to S395, therefore, the Tribunal did not divert itself from the question of whether the respondent would face a real chance of persecution if he returned to Afghanistan. This matter also differs from S395 in that the risk of persecution claimed in that case was general and nationwide. The occasion for consideration of whether the applicants could be safe from harm in a particular area of Bangladesh did not arise. In this case the risk of harm was specific to an area. In this matter the Tribunal did not consider that the issue of relocation arose as such, for the reason that the respondent already resided in Kabul, the place where he was considered to be relatively safe. However, as will be explained, the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there. The "internal relocation principle" is well established. According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country. The connection of the principle to the definition of a refugee in the Convention, and the conditions for the principle's application, were explained by this Court in SZATV. In that case the Tribunal refused to grant a protection visa because it determined that the visa applicant, a Ukrainian journalist who had suffered persecution for his political opinions, could relocate to another region of Ukraine, even though he might not be able to continue to work there as a journalist. The Tribunal failed to consider what might reasonably be expected of the applicant with respect to relocation, which this Court held was an error of law. In SZATV, Gummow, Hayne and Crennan JJ observed that the Convention definition of a refugee is drawn into Australian law by s 36(2) of the Migration Act, which provides the criteria for granting a protection visa. Their Honours added that any principle respecting internal relocation must therefore be distilled from the text of the Convention. The critical portion in Art 1A(2) of the Convention states that the term "refugee" applies to any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ..." Their Honours accepted as correct the explanation given by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department as to how the internal relocation principle finds its place in the Convention. Whilst Art 1A(2) does not make express reference to relocation, in the sense of there being a place within a person's country where he or she could reasonably be expected to relocate, such a restriction on the Convention's protection may be seen to arise from the causative condition expressed in the definition of "refugee". If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee. In this case the respondent submitted that, in SZATV, this Court did not consider an alternative explanation of the internal relocation principle to that proposed in Januzi. On this alternative approach, a person who can reasonably relocate to a safe area within his country remains a refugee, but he may nevertheless be returned to the safe area without Art 33(1) of the Convention, which relates to non-refoulement, being breached. It is true that this argument does not appear to have been considered by the Court in SZATV; however, this is not sufficient reason to reconsider that decision. None of the conditions referred to in John v Federal Commissioner of Taxation is present. The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed. The UNHCR Handbook recognises that persecution of a particular group may occur in only one part of a country, and that in such situations a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if in all the circumstances it would not have been reasonable to expect him to do so. In Januzi, Lord Bingham, in an observation referred to in SZATV, said that the corollary of this proposition is that a person will be excluded from refugee status if, in all the circumstances, it would be reasonable to expect him to relocate to another part of the same country. In SZATV the Minister submitted that what is "reasonable" in this context is to be equated with what is "practicable". Gummow, Hayne and Crennan JJ accepted this submission, but added: "However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality." In SZATV the effect of the Tribunal's decision was that the applicant was expected to move to another region of Ukraine and live "discreetly" so as not to attract attention. It was observed that, in S395, the notion that the applicants could avoid persecution by living "discreetly" had been rejected. In SZATV it was held that the Tribunal had sidestepped consideration of what might reasonably be expected of the applicant with respect to his relocation. This presented an error of law going to an essential task of the Tribunal – determining whether the applicant's fear of persecution was well founded in the Convention sense, and thus also for the purposes of s 36(2)(a) of the Migration Act. The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable. In Januzi, the House of Lords approved the approach of the Court of Appeal in E v Secretary of State for the Home Department as to the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to move to a safe haven within his or her country of nationality – that is, to internally relocate. In the respects relevant to this matter, the Court of Appeal said: "Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there ... Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is 'outside the country of his nationality by reason of a well-founded fear of persecution'." The nature of the test was said to involve "a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker." In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the respondent's ability to earn an income from other sources and to his needs and those of his family. The Tribunal did not address this question. It did not address what was necessary to an enquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him. This matter does not fall to be decided on grounds of procedural fairness. Even if the Tribunal's assumption were correct, that assumption could not provide a complete answer to the question the Tribunal should have addressed. Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law. The appeal should be dismissed with costs.