SZRKY v Minister for Immigration and Citizenship and Anor [2013] HCATrans 249 (11 October 2013)

Last Updated: 15 October 2013

[2013] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S94 of 2013

B e t w e e n -

SZRKY

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2013, AT 12.23 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE: If the Court pleases, I appear with my learned friend, MR T.L.B. HICKEY. (instructed by Kah Lawyers)

MR J.B. KAY HOYLE: May it please the Court, I appear on behalf of the first respondent. (instructed by Clayton Utz Lawyers)

KIEFEL J: Yes, Mr Prince.

MR PRINCE: Thank you, your Honours. There are three issues arising on the application for special leave but really at the heart of all three of them is the one point, one step which was that my client, consistent with Article 1A(2) of the Convention said that owing to a well-founded fear of persecution of returning to Afghanistan he was unwilling to seek the protection of Afghanistan. That is the way the test is expressed in Article 1A(2).

KIEFEL J: Forgive me for interrupting you so early, but you have said, really, there is only one point. Is your point about the migration agent not pursued?

MR PRINCE: It is, your Honour. It is at the heart of all three matters. There are variations on a theme. The point about the migration agent is a little discrete but it really arises out of this one step that the reviewer took which effectively changed the test from whether or not there was a well-founded fear of persecution on returning to Afghanistan to whether there was a well-founded fear of persecution residing in Jaghori so that by turning the test in that way the reviewer has effectively avoided the relocation test issue about whether it is safe to live in a particular part of the country if there is a fear of persecution elsewhere in the country and has narrowed the test to one which just is not consistent with the Convention.

So that by redefining the question the reviewer has simply not dealt with the applicant’s claim which is that he had a well-founded fear of persecution of returning to Afghanistan and that was why he was not seeking the protection of the Afghan Government or was unwilling to seek the protection of the Afghan Government.

It is of great significance because if that approach were to be approved then the full scope of the Convention could be sidestepped by only analysing whether or not there was a well-founded fear of persecution in a particular region. The correct way that the test should operate is that – and I will come back to MZYPW which picks up SZATV - if there is a well-founded fear of persecution of returning to the country of which the person is a national there is an implication in the Convention that that will not entitle the applicant to protection if he can reasonably relocate to a part within the country where he will be safe.

There are two elements to that relocation test which are, first, whether he will have a well-founded fear of persecution in that part of the country and, secondly, whether it would be reasonable to require him to live there within Afghanistan. So that one only gets to a dissection of independent regions and towns and hamlets or whatever subdivision one applies of a part of the country through the relocation test but what has happened here is because the test has been inverted by the reviewer as though the Convention said “owing to a well-founded fear of persecution in the person’s home village they are unwilling or unable to avail themselves of the protection of the nation of which they are a citizen” that twist does two things. First, it avoids the Convention and, seconds, it avoids a relocation test.

So that underlies and really is the root cause of the three issues which arise in the special leave application. That approach – which I submit is erroneous – was picked up and approved, effectively, by Justice Cowdroy in the decision below at page 83 of the application book at paragraph 19 where his Honour accepted that - - -

KIEFEL J: Forgive the interruption - you say this is an inversion of the relocation test. Does it amount to a finding that the applicant would not suffer persecution if he remained in a particular location? So you do not have to relocate, you are safe from persecution in the location where you are. You just have to remain there and not venture into other parts of Afghanistan.

MR PRINCE: It does do that and that is the error because what it does is – and perhaps that comes from the nomenclature of relocation rather than the substance of the test.

KIEFEL J: Yes, exactly, the notion of persecution, but is that not merely to acknowledge that there may be in countries some areas which are safe and some which are not.

MR PRINCE: It does, but - - -

KIEFEL J: So the notion of location or relocation does not really matter. All that is really being said here is that there is a safe place.

MR PRINCE: That is right and that is what the relocation principle is concerned with. Can I make that good by taking your Honours to MZYPW which is behind tab 5 in the agreed bundle of authorities. SZATV is not in a bundle, your Honours, because the salient parts of SZATV are really picked up in MZYPW. Can I take your Honours to – MZYPW is only reported in [2012] FCAFC 99; 289 ALR 541 and can I take your Honours to page 543. Paragraph [8] reproduces paragraphs [19] through to [22] of SZATV. Can I just jump quickly and first to page 544 and the passage which was referred to by Lord Bingham in Januzi at point 15:

“The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.”

So what the relocation principle is concerned with is exactly your Honour’s point. Where the fear of persecution does not relate to every part of the country the inquiry then becomes which part of the country the person can live in.

KIEFEL J: Yes, but the point here is that he does not have to relocate. It is not a question of reasonableness. The finding is that he does not need to relocate. In fact, he should not.

MR PRINCE: That is the finding but it is reached by the wrong analysis. It is reached by the label of relocation rather than the substance of what relocation is about. If one looks at it the other way you could say, for example, that he has a well-founded fear of persecution in some parts of Afghanistan and in some parts of Afghanistan he could be expected to reasonably relocate where he would not have a well-founded fear of persecution, but the Convention is always concerned with whether or not his unwillingness to seek the protection of his nation is because of a well-founded fear of persecution in that country, not in a particular part of that country but in that country. Now, once that is met then the next question arises and his Lordship at paragraph [22], which is recorded at [22] of MZYPW, says:

“The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status –

that is, they were in refugee status and now they are being taken out of it –

if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.

So that the default position is that he has a well-founded fear of persecution of going to Afghanistan. The next question is can he relocate to a particular area of Afghanistan within Afghanistan where he would not have a well-founded fear of persecution and where that relocation would be reasonable. It is the second step of requiring the relocation to be reasonable which is missed by the reviewer by defining this into the first question of whether there is a well-founded fear of persecution of returning to Afghanistan.

What has happened is that the reviewer has assessed the applicant by reference to a particular geographical location or a part of the country without applying the test of reasonableness in respect of living in that particular part of the country. This is really how the matter went wrong and it is why it is a matter of public importance, as I have said, because by doing this in one bound Jack is free and instead of having a relocation test apply with two elements the effect is to build relocation into the first step where there is only one element which is not what the Convention does.

In MZYPW the relevant part of the Convention, which I know your Honours are well familiar with, is extracted at page 543 of the report, paragraph [6] and that is:

owing to well-founded fear of being persecuted –

for Convention reasons, the person -

is outside the country of his nationality –

step one; step two –

and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country –

and as your Honours know that means diplomatic and consular protection of the country which then brings in broader questions of whether there is a well-founded fear of persecution arising from the fact that when one seeks consular protection one will invariably be returned to the home country.

As your Honours would expect with an international treaty which is binding member states and not parts of states, what the treaty is concerned with is whether or not the state is a place to which the person can be returned owing to a well-founded fear of persecution and it is always important to recall, as their Honours did in SZATV, that the question of relocation within a part of the country which may be safe is a matter of implication into the Convention and the implication plainly includes a test of reasonableness.

The test of reasonableness was described by Justice Kirby in SZATV and it is extracted in MZYPW at pages 544 to 545 and I note that in MZYPW:

No issue was taken with the proposition that an assessment of reasonableness was dependent upon “the particular circumstances of the applicant for refugee status” –

in that case by the Minister and nor could any such challenge be made. Reasonableness must have something to do with the personal circumstances of the individual. In the present case the reviewer never got to that step of considering the reasonableness of the applicant living in a particular part of the country because the reviewer found that, again, really by application of the label “relocation” rather than the test, that it would not apply to the place of his birth and your Honours would see at paragraph 76 on page 21 of the application book where the reviewer takes that step.

So that there cannot be any question that the reviewer has in fact turned his face against the prospect that the relocation test with its qualification of reasonableness will apply to the question of whether or not the applicant can live safely in Jaghori. The consequence of this flows through as well to the language issue which your Honours will have seen in the submissions. In a sense, one does not need to get there because it is plain from the reasons that the reviewer simply did not engage in this process at all. It cannot be said what would have happened if he had have engaged in that process. That is really a matter for the Minister or for the reviewer if a matter is ultimately the subject of a declaration but that process of whether it was reasonable to relocate to Jaghori has simply not been undertaken.

KEANE J: Mr Prince, does not this use of the language “relocate”, which permeates and underpins all your submissions - it seems to be inappropriate when all that is being suggested is that your client goes home. He is not relocating within the country. It is home.

MR PRINCE: This is the difficulty with focusing on the word rather than the substance of what is happening because - - -

KEANE J: The substance of what is happening is not relocation. He is just going home.

MR PRINCE: Well, he is going to Afghanistan and that is what the Convention is concerned about. The Convention is not concerned about the state of particular bits of Afghanistan. One does not only have a claim under the Refugee Convention if one has a well-founded fear of persecution in the home village or the home town; one has a well-founded fear of persecution of returning to one’s country of nationality and then the question is whether one can live within that country in a particular place with safety.

So to dissect it and to reduce it to particular parts of the country in the first step under the Convention itself under Article 1A(2) is to import a level of domesticity and a localisation which just is not there in the terms of the article. It has to be implied in through what has become in shorthand called “the relocation principle”, that is, that they can move to a particular part of the country.

In terms of whether it is his hometown, your Honours, this case has an interesting factual element which makes it a good vehicle because to say that it is his hometown is a stretch given that he left when he was five months old. He has never lived there as a conscious being, in a sense - I am sure my six month old would disagree with that - but he has not lived in that part of Afghanistan. He left when he was very young. His hometown is Quetta in Pakistan. So to say that somehow because he was born there that makes it his hometown or because he has some relatives there that makes it his hometown - - -

KEANE J: In a region where he would not have a well-founded fear of persecution.

MR PRINCE: Yes, but in a region. So the same argument could be made - - -

KEANE J: Region of the country?

MR PRINCE: Yes, but the Convention is not concerned with regions of the country. The only thing the Convention is concerned with is the country. The question of regions only comes in at the step of relocation and that step which is really a step of safety in a part of the country or an enclave, if you could call it that, is subject to a requirement of reasonableness and that was avoided by the reviewer and that avoidance was endorsed by their Honours below and that is where it falls down.

You see that because the question of his arrival at the airport is not considered and, indeed, in his claims he had said, “Look, people get killed when they come out of the airport” and then the question of a journey claim, getting from the airport to Jaghori again is just not dealt with because rather than do what the Convention says which is to look at whether there is a well-founded fear of persecution of seeking the protection of Afghanistan because it would mean being sent to Afghanistan, the reviewer has rather said, “Is there a well-founded fear of persecution of living in Jaghori?” and

that is just not the test and that leads to all the errors that are described in the submissions.

I see the yellow light, your Honours. The question of language has been raised and I think there are references in my written outline to it. Your Honours might recall that in MZYPW there was an issue of whether somebody learning Hazagari - the language in Quetta in Pakistan has a distinctive language which then marks them out back in Afghanistan as people who would be subject to persecution.

Clearly, he raised the issue about his language, marking him out to the Taliban. He did not do it as plainly or as obviously as might have been done in MZYPW but this is supposed to be a specialist Tribunal. There are lots of claims from Quetta in Pakistan. In my submission, that is not enough to say well, he just raised the question of language. He did not go any further into detail.

As to the migration agent, I have already made my submissions on that in the written submissions but there is just no basis for his Honour having used SZRPA in the way that his Honour did and creating that distinction between represented and unrepresented people. The argument from my friend, well, it does not matter because paragraph 100 deals with the point anyway, that is, the safety of travel on the roads is not related to Convention reasons. That does not go anywhere near the question of the particular route that he would need to take to get from arriving in Afghanistan to what is said to be the safe part of where he would live. It is just a generalised statement about the nature of road travel in Afghanistan. Thank you, your Honours.

KIEFEL J: We will not need to trouble you, thank you. I will ask Justice Keane to give the reasons in this matter.

KEANE J: The applicant seeks to contend that the decision of the Federal Court was affected by error in treating the claim of the applicant, who was represented in the review process by a migration agent, differently from a claim for refugee status by an unrepresented applicant, and in approaching the applicant’s claim to a well-founded fear of persecution in the region of Jaghori in Afghanistan rather than in Afghanistan as a whole.

The contentions which the applicant seeks to agitate depend upon conclusions about matters of fact which were considered by the Federal Court. Those matters involve the application of settled principles. They give rise to no question of law of general importance sufficient to warrant the grant of special leave to appeal. The application for special leave should be dismissed.

KIEFEL J: The order will be that special leave be refused.

MR KAY HOYLE: The respondent seeks costs.

KIEFEL J: Can you resist that, Mr Prince?

MR PRINCE: No, although I notice that the costs below were awarded against my client who was an unaccompanied minor and subject to, one would have thought, the guardianship of the Minister at the time.

KIEFEL J: I do not think we are dealing with those points. We are dealing with the costs today.

MR PRINCE: No. I do not think I can say anything.

KIEFEL J: The applicant will pay the respondent’s costs.

The Court will now adjourn until 2.00 pm.

AT 12.47 PM THE MATTER WAS CONCLUDED