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High Court of Australia Transcripts |
Last Updated: 9 October 2014
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S109 of 2014
B e t w e e n -
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
and
SZSCA
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
FRENCH CJ
HAYNE J
KIEFEL J
GAGELER
J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 9 OCTOBER 2014, AT 10.16 AM
Copyright in the High Court of Australia
MR G.T. JOHNSON, SC: May it please your Honours, I appear with my learned friend, MR J.D. SMITH, for the appellant. (instructed by Australian Government Solicitor)
MR S.B. LLOYD, SC: If it please the Court, I appear with MR P.D. REYNOLDS, for the first respondent. (instructed by Fragomen)
FRENCH CJ: There is a submitting appearance for the second. Yes, Mr Johnson.
MR JOHNSON: Thank you, your Honours. Your Honours, the present appeal concerns the issue of whether a person in Australia may be found not to meet the definition of a refugee in circumstances where that person could, upon return to his or her country of nationality, avoid persecutory harm by changing his or her occupation. It would be reasonable for that person to do so, and doing so would not abrogate any trait protected by the Convention. When we speak of trait protected by the Convention, we are talking about the qualities or rights which are inherent in the Convention reasons.
Your Honours, I have distributed to the Court an outline of oral submissions, which I think your Honours should by now have received. That comprises an effort to reduce into sequential order what we see as being the main propositions that are advanced in our written submissions. Before coming to those points, I thought that the appropriate course would probably be to take your Honours through the relevant part of the Tribunal decision so that your Honours can see the claims that were made and how relevantly the Tribunal dealt with them. Then I was going to visit very briefly the Federal Circuit Court’s judgment simply to show the key paragraphs where the reasoning appears to the effect that there was jurisdictional error through failure to observe S395 approaching the matter asking not what the person would do but what the person could do.
HAYNE J: Before you undertake those tasks, important as they are, can I just understand what you would say to be the correct starting point for legal analysis? Do you accept that the chain of analysis is conveniently described in SZATV v The Minister [2007] HCA 40; 233 CLR 18 in the plurality reasons, namely, start with the Convention, observe that the person concerned is outside the country of origin, in this case ask why the person is outside the country of origin and is unwilling to accept or to seek diplomatic or consular protection of that country, in this case I think – we will come to this in due time – observed that the person has a subjectively expressed fear of persecution for a Convention reason, and then come to the question of whether that fear is well-founded objectively? Is that the chain of reasoning that is to be followed?
MR JOHNSON: Well, in our submission, yes, your Honour.
HAYNE J: And in determining that last question – whether the fear is objectively well-founded, what influence, if any, should the chronology of events in this case have where, within I think about 10 or 12 days of this man having a translation of a threat to his life he left Kabul and Afghanistan?
MR JOHNSON: Two things in answer to that, your Honour. Firstly, with respect to the proposition that the man left Afghanistan because of the threat, there is no dispute about that. That is not to say that it gives rise to a well-founded fear of persecution. Another point which perhaps needs to be made in the course of answering your Honour is that it is not, of course, sufficient to satisfy the second element of the Convention definition, one must also satisfy the first. I suppose a key theme of our case which has featured fairly prominently in the written submissions that we have made is that there is an analogy to be made with the relocation cases.
HAYNE J: Well, that is to impose a taxonomy on it which may or may not be useful.
MR JOHNSON: That is right.
HAYNE J: That is a point to which we will undoubtedly come in the course of argument.
MR JOHNSON: Indeed.
HAYNE J: That is why I wanted to identify at the outset whether the essential framework for consideration has the elements that I have identified.
MR JOHNSON: Yes. Yes, and we accept those elements, your Honour, and we would say that perhaps the most important of all is that the man is not, on the facts as found by the Tribunal, outside of Afghanistan because of a well-founded fear.
GAGELER J: But, Mr Johnson, is there an additional element, which is the causal connection denoted by the words “owing to”?
MR JOHNSON: Yes, that is the point that I was attempting to make in speaking of the first causal element. So just as the person who may reasonably relocate and thereby avoid a well-founded fear of persecution is not outside the country of nationality owing to a well-founded fear of persecution, then so to where all that the person has to do is to change his job.
FRENCH CJ: There was an unconditional threat, was there not, in the Taliban letter?
MR JOHNSON: There was an unconditional threat - - -
FRENCH CJ: It was not kill him unless he changes his job?
MR JOHNSON: That is correct, that is correct, but what was important was that the Tribunal found that if he remained in Kabul then he would be safe from being in effect found by the Taliban so that that threat could be carried out. The Tribunal accepted that if he was stopped at a checkpoint again on these roads that he had been driving outside of Kabul, then he faced a well-founded fear of persecution, but within Kabul they found that he would be safe.
HAYNE J: That presents, does it not, a very simple question, whether it was objectively, not subjectively, objectively reasonable for him to do what he did, flee Kabul? Indeed, was that not the determinative question in this case?
MR JOHNSON: Well, in our submission, properly no, because the fact that if the Tribunal is correct and the man could remain in Kabul safe from being found by the Taliban so that the threat could be executed, and if the Tribunal was correct in finding that he could reasonably remain in Kabul by changing his occupation to that a jeweller, which was something that he had done before, well then he would not, in Kabul, have an objectively well-founded fear of persecution.
KIEFEL J: Was the Tribunal, in coming to that view, answering the question whether if he returned he would face a real chance of persecution?
MR JOHNSON: The - - -
KIEFEL J: Or shall I put it another way. Was it answering another question, namely, whether he would face a real chance of persecution if he returned, but kept away from a particular area?
MR JOHNSON: In terms of the different stages of the test of refugee, both the “owing to” limb and the “well-founded fear” limb are at play in this case. If he would be safe in Kabul from the Taliban, safe from well-founded fear of persecution from the Taliban, and if he could remain in Kabul to achieve that safety reasonably by altering his occupation to a jeweller, then in those circumstances he would not be outside of Afghanistan because of a well-founded fear of persecution in the same way that somebody who has a reasonable relocation option is not outside of the country because of a well-founded fear of persecution, and when one looked at his situation within Kabul, once again assuming the Tribunal is correct, there was no objectively well-founded fear. I realise, of course, that your Honours are familiar with the material, but would it assist if I attempted to go through the Tribunal decision just to identify where the claims are and where the Tribunal’s reasoning is?
FRENCH CJ: I think if you just focus on the salient features rather than taking us right back - - -
MR JOHNSON: Very well. What I might do then is effectively give your Honours the map rather than pausing to read the detail.
FRENCH CJ: The Tribunal set out an exhaustive account of all these claims at various levels.
MR JOHNSON: It did. The essential claims are probably sufficiently set out in the account of the statutory declaration which starts on page 6 of the book and covers paragraphs 26 through to 31. The protection interview more or less followed that. One sees in paragraphs 43, 54 and 57, amongst other places, notes of claims that he was making as to the bases upon which he feared persecution. At paragraph 49, there is reference to the submission that was made by his agents on 4 September 2012 in which:
It was stated that from about January 2011 the applicant began to specialise in the transportation of construction materials between Kabul and Jaghori (which provided a higher income than basic commodities) –
Then it talks about being stopped by the Taliban in January 2011 and found to have been carrying cement and lime and, asked why, he explained that he was just transporting materials for a private shopkeeper, released with a warning. He nonetheless, set out in 50, continued to carry such materials.
Around about November 2011 in Kabul, another Hazara driver who routinely travelled between Jaghori and Kabul told the applicant that during the last journey he had been stopped by the Taliban and given a letter stating that it was the religious duty of locals to get rid of the applicant, and he said that he feared for his life and left Afghanistan soon afterwards. There is further reference to his claims at paragraphs 54 and 57. At the hearing - an account of the hearing is given from paragraph 60. It is perhaps worth noting that in the Tribunal’s account of the hearing the Tribunal notes at paragraph 64:
the Tribunal asked the applicant why there would still be a problem if he stopped doing that –
that is, carrying construction materials in those districts.
The applicant replied that because he had done that job in the past, the Taliban had written he should be harmed or killed.
Then the question of safety in Kabul was put to him in paragraphs 66 and 73. Then there is reference to his post-hearing submission from paragraphs 77 through to 84.
FRENCH CJ: Ultimately we are concerned though, are we not, with the findings of fact made by the Tribunal and whether the reasoning based on those findings of fact disclosed jurisdictional error?
MR JOHNSON: Exactly. In relation to these particular claims, the reasoning appears at paragraphs 115 through to 120, and then from 126 through to 134, and if I could just move - - -
KEANE J: Looking at paragraph 119:
The Tribunal therefore accepts that if the applicant was again intercepted on the roads by the Taliban (and particularly if he was carrying construction materials) he would face a real chance of serious harm and even death, by reason of an imputed political opinion –
If one looks at the letter at page 149, the letter certainly suggests in the last paragraph that he might be found on that road, but it is a direction to adherence of the Islamic Emirate of Afghanistan to kill him because he is an apostate.
MR JOHNSON: That still - - -
KEANE J: So that it is not a question of him being found on the road driving a truck, it is a question of whether he is at risk or has a well-founded fear of being killed by any pious adherent of the Islamic Emirate of Afghanistan. In consequence of receiving that letter, within less than two weeks he leaves Afghanistan and his family. That does rather suggest – that is conduct which rather suggests that he is a refugee, is it not?
MR JOHNSON: His conduct in leaving may suggest a subjective fear - - -
KEANE J: But it is founded on the basis that pious adherents of the Islamic Emirate of Afghanistan have been requested if they find him, wherever they find him, to deal with him as an apostate.
MR JOHNSON: But the Tribunal was not obliged to stop at the letter. The Tribunal was obliged to look at whether or not he came within the definition on all of the facts of the case and that included what risk, if any, he would have if he remained in Kabul – a city to which he had already relocated – and - - -
KEANE J: And did the Tribunal concern itself to find whether there are, in Kabul, adherents of the Islamic Emirate of Afghanistan?
MR JOHNSON: The Tribunal’s findings from – really from 126 through to 134 – but particularly from 129 through to - - -
KEANE J: Looking at 126, the finding is –
he might not necessarily face the same problem –
Is that the equivalent of a finding that there is no real chance?
MR JOHNSON: No, that is the introduction to this series of paragraphs, and - - -
KEANE J: Does it not reflect an appreciation that while it might not necessarily be the case, there is a chance? The difficulty I am having with this, Mr Johnson, to be frank, is that once it is accepted that the letter was genuine, and this gentleman’s conduct seems to suggest that he certainly thought it was - - -
MR JOHNSON: He thought it was.
KEANE J: - - - but once it is accepted that the letter is genuine, it establishes that pious adherents of the Islamic Emirate of Afghanistan of whom, one imagines, that there may be some in Kabul, have been requested to deal with him as an apostate. Now when one then asks, does he have, objectively speaking, a well-founded fear of being dealt with on the footing that he is an apostate from Islam, why is he not within Article 1 of the Convention?
MR JOHNSON: Because the Tribunal is entitled to look at the evidence, to look at the material before it, and to ask itself whether there is a well-founded fear of him actually being apprehended, actually being dealt with by the Taliban in Kabul, and the end point of this analysis under the heading “Kabul” and particularly from paragraphs 129 to 134, is the conclusion in paragraph 134:
The Tribunal is not satisfied that the applicant would be pursued, identified and targeted in his home region (Kabul) and there face a real chance of persecution . . . for a Convention reason, now or in the reasonably foreseeable future.
KIEFEL J: But the Tribunal did not deal with him as an apostate living in Kabul, it dealt with him as a low profile target who the Taliban would not search out. Nowhere does the Tribunal deal with his risk as an apostate living in Kabul.
MR JOHNSON: The Tribunal is - - -
KIEFEL J: I am sorry, I should add to that. Its identification of him as a low profile target by comparison with a high profile target who might be actively pursued and targeted, looking at paragraph 130, was based upon the Tribunal’s view of the respondent as a person to whom the Taliban had imputed a political opinion, and it had done so because of his activity as a driver in the areas in which it drove. The Tribunal has only focused upon that aspect of the Taliban’s view of him to identify the extent to which the Taliban might be motivated to harm him.
MR JOHNSON: No, with respect, on his claims to the Tribunal the reason why the Taliban formed a view of him and wanted to kill him was that he was carrying building materials and therefore would be attributed with support for the west or foreign agencies. His claim never talks about equality of his religious practices as such, it is all about what might be inferred - - -
KIEFEL J: No, but the letter, as Justice Keane has identified for you, the letter shows that he is considered to be an apostate, that is in a different category perhaps from a person who might favour or be seen to support foreign aid agencies. Can you point to anywhere in the Tribunal’s reasons where they deal with him as a person who is regarded by the Taliban as an apostate, which the letter states, and where his profile, so far as concerns the Taliban, is addressed accordingly? I do not think you can. Nothing in paragraphs 130 or 131 show that it has considered that question.
MR JOHNSON: But, your Honour, if we go back to that very letter, the letter at page 149 explains why this view of him has been found. In the second paragraph he is described as:
a criminal, seditious . . . is 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.
Now, that is why they are threatening him.
KIEFEL J: The last sentence:
Therefore we request from you, to take firm action as soon as possible to get rid of this apostate, criminal person on the road from Qarabagh and Janda areas.
MR JOHNSON: Yes, but that does not alter, with respect, the quality, the behaviour which leads them to label him and threaten him.
KIEFEL J: Well, we are getting into something approaching a statutory construction of a letter from the Taliban. Where does the Tribunal deal with what is said in the letter about the Taliban attributing to him the status of an apostate? I think the answer is nowhere.
MR JOHNSON: I understand what your Honour is putting to me and I am only relying on the reasoning to which I have referred from paragraphs 129 to 134. What I am saying to your Honours is that, although it is couched in terms of this activity of carrying building materials, that is in substance dealing with the issue that your Honour is raising.
HAYNE J: Now, does that not exchange that you have had with Justice Kiefel reveal that the Tribunal has diverted its attention from what on one point of view was the central issue for its consideration? Can I approach the identification of that issue in two steps? One, do you accept that a question for the Tribunal was, was it objectively reasonable for the claimant to leave and remain away from Kabul on account of the fear he held subjectively?
MR JOHNSON: One still must ask why he is outside the country, which is - - -
HAYNE J: That is exactly what I am trying to capture in the formulation I have given, and that is why I need you to grapple with that formulation and tell me its inadequacy or incompleteness.
MR JOHNSON: The formulation that the appellant has advanced in this appeal is, in my respectful submission, on all fours with what was said in SZATV, captures this two stages of the definition, and I agree that what your Honour is putting to me is alluding to those two stages, but the debate that I have had with Justice Kiefel, if I might say, is more to do with whether or not the Tribunal has dealt with what has been put to it as to why the applicant does face harm in Kabul.
HAYNE J: Undoubtedly, it has responded to the arguments. Of course it has, and it has done so with commendable attention to the detail of it. My question to you is directed to identifying whether the Tribunal has asked itself the right question. You have to say yes, it has. I am putting to you a formula which, preliminary to testing that issue, do you accept that a question for the Tribunal was as I have described it?
MR JOHNSON: As to whether or not he has a well-founded fear in Kabul?
HAYNE J: No, was it objectively reasonable to leave and remain away from Kabul on account of the fears he expressed?
MR JOHNSON: That is a question.
HAYNE J: Then the next issue is if that is a question, in the facts of this case, what other relevant question bore upon the “owing to” issue?
MR JOHNSON: The Taliban’s ability to execute the threat.
HAYNE J: That is why I ask you about objective reasonableness - not his subjective belief, but was it objectively reasonable for him to leave and remain away?
MR JOHNSON: With respect, what I put to your Honour – the question as to the Taliban’s ability to carry out the threat is very much relevant to whether or not the leaving and staying away is objectively well founded because the Tribunal’s reasoning, plainly, was not to dispute that he had a real chance of serious harm if caught by the Taliban. The Tribunal’s reasoning, critically, was that it did not accept that he would be caught by the Taliban if he remained in Kabul.
KEANE J: That there was no real chance he might be?
MR JOHNSON: That is right, and that is - - -
KEANE J: Did they find there was no real chance he might be, that they might reach him?
MR JOHNSON: They did. If one is looking for the particular language “no real chance”, it occurs in paragraph 134:
The Tribunal is not satisfied that the applicant would be pursued, identified and targeted in his home region (Kabul) and there face a real chance of persecution (including abduction, abuse and/or physical harm) for a Convention reason, now or in the reasonably foreseeable future.
That was why, on the Tribunal’s findings, it was not objectively well founded for the applicant to leave and stay away. One then gets to this question which is at the heart of the argument in this case as to whether or not the Tribunal can look at this issue of whether he could remain in Kabul reasonably by changing his occupation. All of that issue – that question, dealt with particularly at paragraph 130, as to his ability to remain in Kabul if he reasonably changes his occupation to that of a jeweller, all of that is to give him the means of remaining in the place where the Tribunal has found he has no well-founded fear. But what is important, ultimately, most, is that he has no well-founded fear of persecution in Kabul.
KIEFEL J: And, looking at paragraph 134, critical to that is the notion that he would not be pursued, identified and targeted there - - -
MR JOHNSON: That is right.
KIEFEL J: - - - because the Taliban would not be motivated to do so – would not pursue him because they are not motivated to do so, if you read that with paragraphs 130 and 131, because he is a low-profile target.
MR JOHNSON: No, it is - - -
KIEFEL J: It is only if they come across him on the road carrying goods that the risk arises.
MR JOHNSON: Effectively yes, but it is not just motivation because when one goes through 129 to 132, and I will not do that aloud, but when one goes through paragraphs 129 to 132 they are looking at a number of things. They are looking at whether or not the Taliban are aware that he is living in Kabul. In paragraph 129 there the Tribunal is not satisfied that the Tribunal is so aware – sorry, paragraph 129 the Tribunal is not satisfied that the Taliban are aware that he is living in Kabul. That same idea is part of what is said also later in paragraph 132.
Then a second and additional point is that he is not a high-profile target who they would be actively pursuing and targeting throughout the country rather than someone to be harmed should he again come to their attention. That is in the first part of paragraph 130. There is more in paragraph 131 to the effect that:
there is strong evidence . . . that the Taliban does not actively pursue and target low-profile persons in Kabul.
Then in 132 there are also some particular findings as to the safety of Kabul additional to those. Paragraph 132:
The Tribunal also notes that the applicant and his family live in Dasht e Barchi in Kabul, a solidly Hazara area where Taliban enquiries would be conspicuous. No such enquiries appear to have been made there either before or after the applicant’s departure from Kabul.
Again it is mentioned that:
As late as June 2012 the Taliban appeared unaware of the applicant’s whereabouts.
Then there is also reference to that area of Dasht e Barchi having many people there effectively within the applicant’s community group. Then there is reference also to – in paragraph 133 – to security being:
relatively good and publicly available reports indicates that incidents are largely directed against foreigners and public figures and institutions.
So all of those things compositely go to the Tribunal’s conclusion that he has no real chance of persecution if he is able to stay in Kabul.
GAGELER J: Mr Johnson, is this case concerned only with imputed political opinion?
MR JOHNSON: Yes, but with a rider. The applicant did – on one occasion only, but nonetheless the applicant did, in his statutory declaration of 4 May 2012 say that he also had an actual political opinion. Now, if your Honour goes to page 7 of the appeal book in paragraph 31, the last five lines:
He fears that he would be harmed or mistreated for reasons of his Hazara ethnicity and Shia religion, and as a member of a particular social group: truck drivers who transport goods for foreign agencies; as well as for his imputed and actual political opinion as a supporter of foreign agencies.
That reference to “actual” in the statutory declaration itself is on appeal book page 88 in the paragraph numbered 22. That is the qualification. However – and this is important in our submission – nowhere does the applicant – the review applicant – ever claim to the delegate or to the Tribunal that he was either driving trucks or carrying building materials as an expression of political opinion. The only evidence as to his reason for carrying building materials was to earn more income, and in footnote 1 of the outline of oral submissions that I gave your Honours this morning, I have given those three appeal book references where he tells us about his motive.
Now, the reason why that is so important is that this activity of driving trucks – be it with or without building materials – is simply not a part of the expression of his political opinion. This is not a case where what is at stake is the protection of an actual political opinion or where someone expects that political opinion to be somehow moderated or restrained or abnegated. This is simply a case where the applicant has engaged in activity, namely driving trucks carrying building materials, which leads the Taliban to think this man is a supporter of western agencies or the government, and so, in that sense, yes, it is just a case of imputed political opinion.
GAGELER J: We are not concerned with reputed religious affiliation. Nor are we concerned with a particular social group that might be defined as some subgroup of truck drivers, as I understand it.
MR JOHNSON: The appellant does not disagree with your Honour, but one of the arguments that my learned friend will make to the Court, and this idea was also picked up in the majority’s reasoning at paragraph 90, is that one of the particular social groups that the applicant was advancing was Afghan truck drivers who carry building materials and the criticism is made, well, the carriage of building materials in this case may have been an element of a particular social group such that although there was no abnegation of a political – sorry, in a sense that even if there was no abnegation of a political opinion it might be – and this is as I understand my friend’s argument – that there was an abnegation of an element of a particular social group.
Could I say in that respect firstly that in the Federal Circuit Court your Honours will have noted that the ground which succeeded – there was only one ground ultimately which succeeded – and the key paragraphs, which I will not read, are probably paragraphs 103, 106 and 108 of the Federal Circuit Court’s reasons and that was where the Federal Circuit Court found jurisdictional error comprised of the Tribunal approaching the matter according to what the man could do rather than what the man would do, and rejecting any argument that it was so entitled.
One of the rejected arguments – and the Tribunal’s reasoning in relation to the rejected arguments starts at 115 and goes through to 127 – was that there was a failure to consider a claim of actual political opinion, and another of the rejected arguments was that there was a failure to consider a claim of membership of a narrower social group than truck drivers. There was never any notice of contention in relation to that, but nonetheless, the criticism has been made that carrying building materials might be, so the respondent to the appeal would contend, an element of a particular social group. There is no dispute between the parties that the Tribunal did make a finding in relation to Afghan truck drivers, that it was not satisfied that they were persecuted as such, and that finding is in paragraph 115.
What we say to the Court in relation to this criticism, which has been made of our argument by the Full Court in paragraph 80 and by our friends, is what we attempt to summarise in paragraph 11 of the outline of oral argument. The essential points are there in 11.1 and 11.2. There was:
No evidence of anything other than fear of persecution to distinguish “Afghan truck drivers who carry building materials” from “Afghan truck drivers” That is not enough to amount to a [particular social group] –
This may be as good a time as any, but I was going to take your Honours just to a few passages from Applicant A, Applicant S and Chen Shi Hai in that respect. Then in 11.2, we say that –
The Tribunal made a finding at [115] that it was not satisfied that Afghan truck drivers were persecuted –
as a particular social group –
If one adds “carrying building materials”, that was only said to be significant because it led to imputation of political opinion –
which was the very case the Tribunal dealt with. For those reasons, we say the criticism evaporates. If I could just take your Honours to those paragraphs of Applicant A, Applicant S and Chen Shi Hai. Applicant A v Minister for Immigration and Ethnic Affairs & Anor 190 CLR 225 and I will just go to the parts which I think are particularly important. If your Honours go to page 242, and this is in the judgment of his Honour Justice Dawson, at the top of the page:
one important limitation which is, I think, obvious is that the characteristic or element which unites the group –
that is, the particular social group –
cannot be a common fear of persecution.
Then in paragraph 257 in the judgment of Justice McHugh in the paragraph which commences “Paradoxically” - - -
FRENCH CJ: At page?
MR JOHNSON: At page 257.
FRENCH CJ: Thank you.
MR JOHNSON: In the paragraph which commences “Paradoxically” there is a sentence about seven lines down giving the example of prisoners and his Honour says:
Prisoners, for example, are arguably a particular social group. If they are routinely beaten because they are prisoners, they may well qualify for refugee status. But narrow the group to prisoners who refuse to obey prison regulations and the case for an applicant becomes so much harder of proof.
Then in Applicant S v Minister for Immigration and Multicultural Affairs 217 CLR 387, in the paragraph numbered 36 on page 400 of the report which is a part of the joint judgment of their Honours Chief Justice Gleeson, Justice Gummow and Justice Kirby, their Honours say – it is under the heading “Conclusions as to “particular social group””:
Therefore, the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.
Then in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at paragraph 13 – it is on page 299 – there is reference to “Applicant A” and just referring to about four or five lines into paragraph 13 there is a specific reference to “Applicant A” having indicated that “a shared fear of persecution [is not] sufficient to constitute a particular social group”. Then five lines into paragraph 14, Justice Dawson observed that:
“[w]here a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms” -
His Honour went and gave an example of -
“a law or practice which persecuted persons who committed a contempt of court or broke traffic laws”.
In the observation to which reference has just been made, Dawson J was elaborating the proposition, with which he agreed, that one should not take too far the statement that, to qualify as persecution for reasons of membership of a particular social group, the conduct must be engaged in on account of “what a person is”, and that conduct by reason of “what a person does” would not be sufficient.
Now this is perhaps the most helpful part of the paragraph -
As example of a case where the proposition held good and was not taken too far, his Honour then gave the above example of a generally applicable law or practice “which persecutes persons who merely engage in certain behaviour or place themselves in a particular situation”. Such persons would not be persecuted by reason of their membership of a particular social group.
We say it is really analogous to what is going on here. The fact that the applicant carries on an activity of carrying building materials, which exposes him to the wrath of the Taliban, does not mean that he is a particular social group or there is a particular social group of Afghan truck drivers who carry building materials.
GAGELER J: There is some case law in the United Kingdom about whether or not persons who carry on a particular occupation can be described as a particular social group. Have you looked at that?
MR JOHNSON: Not specifically, your Honour, no.
GAGELER J: I will give you reference. You might like to take it on board. Ouanes v The Home Secretary [1997] 1 WLR 218.
MR JOHNSON: Thank you, your Honour.
HAYNE J: We are permitted to look at what courts of other countries have done about these things, are we, in interpreting a Convention to which Australia is a party?
MR JOHNSON: Yes.
HAYNE J: We are not intended to give a distinctively Australian interpretation to the instrument to which Australia is a party, are we?
MR JOHNSON: No, I am not suggesting otherwise, your Honour.
HAYNE J: The Minister does not submit that.
MR JOHNSON: I am not suggesting that, your Honour.
HAYNE J: Thank you.
MR JOHNSON: Provided, of course, that the Court agrees with it. Not an island. Well, your Honours, what I might now do is perhaps, in reverting back to that outline of oral submissions, I will just go back to 1.1 and 1.2 and just very, very quickly say something about each of these, except 11 which I have just addressed at some length.
Your Honours, before Justice Gageler’s question, I have made the point, 1.1, that driving trucks, with or without building materials, was not claimed or found to be, for SZSCA, the expression of something protected by the Refugees Convention. One of the consequences of the Tribunal’s findings at 130 was the not driving trucks would not, in the circumstances of SZSCA, be persecution. That is because the applicant had reasonable option available to him of making a living as a jeweller, as he had done before.
Those two matters are not contradicted or answered by the proposition that SZSCA’s life had already been threatened by the Taliban, who were proceeding on the basis that he had the attributed political opinion. Nor are they contradicted by his subsequent modification of that by stopping driving trucks and leaving the country - - -
FRENCH CJ: All of the Tribunal’s reasoning about Kabul has to go to the question in Article 1A whether he is outside the country of nationality by reason of a well-founded fear of persecution by reason of the various, in this case, imputed political opinion. Have they actually framed the reasoning in those terms by reference to Article 1A?
MR JOHNSON: No, I think is the short answer. But the Tribunal obviously was thinking about or had in mind the idea of relocation even though it acknowledged that this was not a relocation case. It was not a relocation case because the applicant had already moved to Kabul and his wife and family were still there. So in that sense in paragraph 127, the Tribunal said:
The issue of relocation does not arise as such.
However, your Honour, the substance of the reasoning which then follows is really quite the same as to how a relocation case is approached. Changing occupations – ordinarily just a part of what one does when one is relocating, if one is relocating, one usually has to change that and a lot more, but - - -
KIEFEL J: If I might interrupt you – is it to be inferred from the Tribunal’s reasoning that they did not think it was a relocation case because Kabul was the safest place they could identify? There was no other place – even returning to where he had come from – they do not suggest that that was – it goes that far - - -
MR JOHNSON: I do not think that is what the Tribunal had in mind. I think that - - -
KIEFEL J: I could not quite follow the reasoning, I have to say, about relocation.
MR JOHNSON: I think that probably – I submit to your Honours that probably the reason why the Tribunal said what it did at 127 – that the issue of relocation does not arise “as such” - and those words “as such” seem to be deliberate – is simply the fact that he was already a resident of Kabul. This was not a case where you had to contemplate somebody picking up and moving from a place where he was resident, or a home region where he had feared persecution for some other place where he would become resident and there be safe. This person was already in Kabul. He had changed his residence to Kabul in 2007 and, as the Tribunal explains there in 127:
His wife and children remain in Kabul.
So I think that is all that the Tribunal meant, that in substance the Tribunal - - -
FRENCH CJ: It was so long as he was in Kabul carrying on some occupation other than that of a truck driver, an occupation for which he was qualified as a jeweller - - -
MR JOHNSON: It had to be one which allowed him to remain in Kabul.
FRENCH CJ: - - - and having regard to what the Tribunal found was a lower risk or a low risk of identification and targeting by the Taliban in Kabul there must be, in order to support the Tribunal’s ultimate conclusion, a linkage of those factual findings to the question whether he left Afghanistan, was outside Afghanistan owing to a well-founded fear of being persecuted.
MR JOHNSON: Yes. What we say is that that first causal component, and I might take your Honours to the relevant paragraphs of SZATV in a moment, but that is effectively answered against the applicant by the reasoning which then occurs.
HAYNE J: Well, it is not a case of whether it was effectively answered against the applicant. The question I think is did the Tribunal ask itself the right question, not can you spell an answer out to the right question, but did they ask the right question.
MR JOHNSON: Subject to this important rider, that one is entitled in examining the Tribunal’s reasons to look in substance at what they were doing and then to form a view as to whether or not they were answering the correct legal tests. It is not necessarily a matter of the Tribunal having to pause and formulate with precision the legal steps in the way that a court might do.
In relation to the text of the Convention, our second point in paragraph 2 is that we say the text supports our argument that on the facts as found by the Tribunal SZSCA is not outside of Afghanistan owing to a well-founded fear of persecution for one of the five Convention reasons.
If I could just take your Honours to SZATV. It, in turn, refers to Januzi, and I do not think there will be any need to go to Januzi, having gone to SZATV. SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40; (2007) 233 CLR 18, and if I could go to the joint judgment of Justices Gummow, Hayne and Crennan. If your Honours go to – it is paragraphs 15 to 19 which are critical. In paragraph 15 – I am sorry, before I do, your Honours are aware, of course, that this case in effect sprung from S395 in that the appellants were effectively arguing that the idea that one must approach these cases by asking what a person would do rather than what he could do effectively left no room for the relocation principle. In paragraph 15, their Honours say:
in Australia any “principle” respecting “internal relocation” must be distilled from the text of the Convention definition, which is applied by s 36(2) of the Act as a criterion for the grant of [special leave]. The critical portion –
FRENCH CJ: Grant of a protection visa, I think.
MR JOHNSON: That is right. I am sorry.
HAYNE J: Freud is alive and well.
MR JOHNSON: He is very alive:
of a protection visa. The critical portion in Art 1A(2) of the Convention definition of “refugee” states that that term shall apply to any person who –
Then your Honours see the well-known definition and the element in the beginning -
“owing to well-founded fear of being . . . outside . . .
Of that provision McHugh and Gummow JJ said in Minister for Immigration and Multicultural Affairs v Khawar:
“This passage presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality ‘owing to’ fear of persecution for reasons of membership of a particular social group, which is well founded both in an objective and a subjective sense. The second condition is met if –
then relevantly, down towards the end of the paragraph –
The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition.
Then their Honours, having shown how that emerges from those two prior authorities in this Court, moved on in paragraph 19 to consider Januzi and their Honours say:
With these propositions in mind, it will be seen that the matter of “relocation” finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department. His Lordship said:
“The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.”
So, similarly here, the applicant has already completed his move to Kabul. It is simply a question of him changing his occupation so that he can stay there, and in those circumstances he is not outside of Kabul for a well-founded fear of persecution.
HAYNE J: An element in that analysis by Lord Bingham, emphasised in paragraph 22 of SZATV, is:
a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect –
in that case of relocation –
him to seek refuge in another part of the same country.
In this case, if under all the circumstances it would be reasonable, what, to expect him to continue to live in Kabul and not travel the roads that he had previously travelled as a truck driver?
MR JOHNSON: Yes, to remain in Kabul and the change of occupation is the means by which he is able to do that.
GAGELER J: Is that what the Tribunal is addressing at page 21, line 20?
MR JOHNSON: In my submission, yes.
HAYNE J: Sorry, where is that? Page 21?
MR JOHNSON: On page 21.
HAYNE J: Yes.
MR JOHNSON: On page 21, and particularly in paragraph 130, the Tribunal is addressing how the applicant can reasonably remain in Kabul.
HAYNE J: Yes. Now, all that being premised, is it not, on paragraphs 119 and 130, in particular the premise being that the Tribunal looks to whether there would be a real chance of persecution if he drove trucks – see paragraph 119. Is that right?
MR JOHNSON: Well, the Tribunal looked at that question, yes.
HAYNE J: Yes, and in 130 it treats, does it not, the only relevant threat as being while he is driving trucks?
MR JOHNSON: No – Kabul. The trucks are taking him outside Kabul.
HAYNE J: Yes, and the premise for 130 is that what?
MR JOHNSON: It is when he is stopped at checkpoints that he is at fear - outside the city that he is at risk of the Taliban executing its threat.
HAYNE J: What I have in mind is the parenthetical second sentence “not clear that the applicant would continue to be targeted at all unless”. Where does the Tribunal consider whether there is a real risk of persecution of this man if he returns to Kabul?
MR JOHNSON: Well, ultimately in paragraph 134 but he has to remain in Kabul. He has to remain in Kabul. That seems to be the reasoning. If he stays in Kabul he is safe. The reasons given why he is safe in Kabul – series of reasons given why he is safe in Kabul which we have already been through and he can stay in Kabul reasonably if he changes his work to that of a jeweller in Kabul.
FRENCH CJ: His liberty, of course, is significantly constrained. Kabul is the only place the Tribunal has identified as, as it were, a safe place for him.
MR JOHNSON: Yes, that is right, that is right. The Tribunal does not identify any particular place outside of Kabul, only Kabul, as being one where he would be safe and where he can reasonably change his employment in this way.
FRENCH CJ: So do you accept this? The narrower the constraints upon his place of living and range of activities in the country of nationality attributable to persecution outside those constraints, the stronger the argument for a causal connection between his being outside that country and the well-founded fear of persecution for a Convention reason.
MR JOHNSON: There is a question of reasonableness for the Tribunal involved in relocation questions and questions such as this. The Tribunal has to be satisfied that it would be reasonable for the applicant to remain in Kabul and we say the Tribunal was so satisfied in paragraph 130 - - -
FRENCH CJ: I am just looking at a way of analysing the causal connection and the strength of it and it just seems to me the tighter the constraints you put on somebody – you say, “Well, you can go home and stay in your cellar and have your wife bring you meals, don’t go out in the street, you will be all right”.
MR JOHNSON: Well, that might be a harder case, but it is the capital city and what the Tribunal – it is the place where his family are already living and the Tribunal is simply saying, well, you can remain there if you go back to work as a jeweller.
GAGELER J: Mr Johnson, your argument does not mention S395. Your outline of argument does not mention S395 except in the first sentence. Are you going to reconcile that case with SZATV?
MR JOHNSON: Yes, your Honour. SZATV provides an example of how the statements in S395 do not provide some blanket prohibition against always looking at what somebody reasonably could do. What we say about S395, your Honour, is this. We do not dispute that the Tribunal did approach the matter by looking at what he reasonably could do, rather than what he reasonably would do. But what we say about S395 is that the various paragraphs of S395 upon which our learned friends rely and upon which the Full Court relied are all uttered in a certain context. That context was one where what was under consideration was behaviour which went to the expression of a Convention characteristic – homosexuality in that case.
There is a big difference between someone being expected to change their sexual orientation or the way they express their sexual orientation, or their political opinion or their religion, or, indeed, any genuine particular social group of which they are a part and, on the other hand, merely altering an activity which at its highest has brought an imputation upon them of political belief.
We are not talking here about conduct which – the Tribunal is not requiring the present respondent to change any conduct which was part of his expression of a Convention trait. We have used various language in relation to this. There is no abnegation of a Convention trait here, we say. It is not enough simply that there has been – simply that driving trucks or driving trucks carrying building materials has caused him to be imputed with a political opinion. He could change that conduct without in any way compromising the particular rights or traits which are embodied in the Convention reasons.
HAYNE J: That whole taxonomic analysis and the difficulties that it generates launches from a distinction between “reasonably could” and “reasonably would”, does it not, a distinction which is, itself, fundamentally flawed?
MR JOHNSON: Well, the significance of S395 of course in this case, on the reasoning of the courts below, was that it was inconsistent with S395 to ask what the person reasonably could do as opposed to looking at what he would do. That is all very well in terms of expression of political opinion.
HAYNE J: Because the weight of the work in the proposition “reasonably could” like in the proposition “reasonably would” depends on the content you are giving to “reasonable” and the more elaborate this analysis and this taxonomy is that is constructed, the further and further away you are getting from the language of the Convention and the chain of argument identified in whichever alphabet the relocation case is.
MR JOHNSON: Yes. The idea which was taken by the Full Court and, indeed, by the Federal Circuit Court from SZATV was not so much “reasonably could” versus “reasonably would” but rather “would”, on the one hand, and “reasonably could” on the other. What we are saying is that the appellant does not have any difficulty or does not seek to argue against S395 insofar as it suggests that one should not be expected to abnegate a Convention characteristic. What we do say, however, is that what was said in S395 about approaching a matter according to what would happen rather than what reasonably could happen was in that context a behaviour which was the expression of a Convention trait, and driving trucks, with or without building materials, does not fall within that category.
FRENCH CJ: But it is all a matter of degree in terms of linkage to the question posed by Article 1A - if I can simplify by saying “the owing to” question. If abnegation of a Convention trait is the only way to be safe back home then it is easier to say that you are not in your country of nationality “owing to”, et cetera.
MR JOHNSON: That is right.
FRENCH CJ: The question remains the same if you are talking about relocation. You are talking about abstaining from some activity which attracts imputation of a Convention trait. It still comes back to the question whether you are outside “owing to”. The problem is there tends to be a superstructure of second order reasoning constructed on that which - - -
MR JOHNSON: These things can also be relevant in relation to identifying whether there is persecution because within the relocation principle, for example, one of the things one has to look at, of course, is what is reasonable in the circumstances of the applicant. But one is also looking for a place, for a situation where there is no well-founded fear of persecution. If the constraints were such as to amount to persecution, well then relocation would not be available.
What we have in this case is a situation where the Tribunal has found that he could reasonably change his job in Kabul, and the Tribunal has found that for him to do so would not be for him something which is to give up something which was a core aspect of his identity, beliefs or lifestyles. The Tribunal simply did not accept that working as a truck driver is a core belief of the applicant’s identity or beliefs or lifestyle, which he should not be expected to modify or change.
KIEFEL J: In S395, in the judgment of Justices Gummow and Hayne at page 500, paragraph 78, it was said that:
The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality.
The identification of this applicant, you would say, I take it, would encapsulate the applicant as a person to whom a political opinion is imputed. That would be right; that was part of what identifies the person. Query the questions I put to you earlier which were addressed to this, which is whether or not here the status of an apostate is also part of the identification of the particular applicant as a person.
Then the question must then move on, must it not, to what else is there about the person and what they do that is relevant to the inquiry of what would happen to them if they returned and their objective matters. There is no reasonableness test. There are none of these other “would/could”; it is an identification of what this person is by reference to imputed opinions, status, what they do, who they are, how they carry on their life.
MR JOHNSON: You examine all of his circumstances, but ultimately in this case, the source of the threat is the Taliban, and on the Tribunal’s findings, this place would be safe for him. This place would not involve a well-founded fear.
KIEFEL J: But that is to say that the Tribunal has asked this question: is there a real chance of persecution if he returned and resided in Kabul? The question is, unless they are dealing with relocation and they have put that out of the picture, what happens if they return to their country of nationality? What happens to this person?
MR JOHNSON: Well, this person is someone who, on the Tribunal’s findings, would be safe in Kabul. The Taliban are not going to reach him.
KIEFEL J: But this person has an occupation which takes him outside of Kabul. I will put aside the apostate question which I dealt with before as being potentially part of the question of what is – or the identification of what is this person implicit in the question, but going on from that, this person does not stay in Kabul.
MR JOHNSON: But the inherent traits that the Convention is there to protect are those embodied in the Convention reasons, not, we say, driving trucks with or without carrying building materials. Once one gets to the point where he could give up his truck driving without abnegating, denying, moderating any of those characteristics, any of those rights, if you like, that are embodied in the Convention reasons, well, then it is simply a question of whether or not it is reasonable in his circumstances to expect him to be in Kabul, or whether it is reasonable for him to, in this case, change his occupation and remain in Kabul where he has already been living. It is now his home place.
HAYNE J: In a sense it is a relocation case, is it not, in the sense that this man at the time he left Afghanistan lived in Kabul but travelled elsewhere?
MR JOHNSON: That is right.
HAYNE J: What is now proposed is he should go back to Afghanistan and live in Kabul and travel nowhere.
MR JOHNSON: Yes.
HAYNE J: Or at least not travel to those places.
MR JOHNSON: Yes, yes.
HAYNE J: Do you say that the Tribunal looked at the relevant questions in determining that issue?
MR JOHNSON: Well, yes. Further – I have already alluded to this, but just focusing directly upon S395, that S395 – the statements in S395 are also made having regard not just to the text of the Convention but also to its purpose. For example, in the judgment of Justices McHugh and Kirby in S395 [2003] HCA 71; 216 CLR 473 at paragraph 40 on page 489, their Honours say:
The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention - - -
KEANE J: Actually that is probably a rather narrow statement of the purpose, is it not? The purpose of the Convention certainly includes protection against the fear of persecution. Article 1A proceeds in precisely those terms.
MR JOHNSON: Well-founded fear.
KEANE J: Quite, well-founded fear, but fear nonetheless, and it seems to me that your argument is that you say the Tribunal found that it was unlikely this gentleman would be killed if he returned to Kabul.
MR JOHNSON: Well, no real chance that he would be seriously harmed.
KEANE J: That seems to be a little different from the question whether the risk that he would be killed, even in Kabul, was such that his fear was objectively well founded.
MR JOHNSON: Well, if there is no well-founded fear of persecution, then it is not objectively well founded. Well-founded fear is the test of - - -
KEANE J: If you know that the Islamic Emirate of Afghanistan has found you to be an apostate and, indeed, also to be guilty of sedition against that state and directed its adherence to that effect, even if it was more likely than not that you would not be killed if you were in Kabul, it is hard to say that you would be unreasonable to be in fear that you might be.
MR JOHNSON: Well, no, (a) there must a subject of fear and (b) it must be objectively well founded.
KEANE J: Quite.
MR JOHNSON: What the Tribunal is saying, in effect is no, it is not objectively well founded here because the Taliban are not going to get him in Kabul. As long as he stays in Kabul he is okay.
KEANE J: More likely than not, they will not get him.
MR JOHNSON: That is right. Well, they do not say “more likely than not”.
KEANE J: But he should just take his chances to that.
MR JOHNSON: No, in fairness, they do not say “more likely than not”. They say that there is, in paragraph 134:
The Tribunal is not satisfied that the applicant would be pursued, identified and targeted in his home region (Kabul) and there face a real chance of persecution - - -
KIEFEL J: That means it would not happen at all.
MR JOHNSON: Well, a real chance.
KIEFEL J: Not likely to, that is high as you can put it. Not likely to.
MR JOHNSON: Well, it is not. Real chance involves nothing fanciful that does not require a balance of probabilities.
KIEFEL J: Well, they are not talking about the same thing then.
MR JOHNSON: Well, we go back to Chen. Also, just in relation to that purpose statement - - -
KEANE J: He would not be unduly timorous if he continued to hold the fear. There is no question about his subjective state of mind but in terms of the objective reasonableness of it you would hardly say that a person in this gentleman’s situation would be unduly timorous if he continued to hold the fear.
MR JOHNSON: It depends entirely upon your satisfaction as to his safety if he remains in Kabul. It depends entirely upon whether you are satisfied that if he stays in this safe place he is not going to be obtained by the Taliban and dealt with by them. Just returning briefly to S395 – in paragraph 41, also, in the second sentence, Justices McHugh and Kirby say:
The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention.
Once again, this is not what is happening here. To say to this man, or to envisage this man giving up driving trucks is not to compromise any of those - - -
FRENCH CJ: Stay in Kabul and do not drive trucks.
MR JOHNSON: That is true. I think probably the points in paragraphs 4 and 5 have already been touched upon thus far, so I will just move very quickly over those. We say the majority was wrong, with respect, to proceed upon the basis that once particular conduct causes a political opinion to be attributed to a claimant then there is no room to expect or require that person to change those activities. That idea seems to undermine, or to be very much a part of the majority’s reasoning, particularly at 62 to 64, 66 and the idea also probably affects what they are saying at 80.
In relation to reasonableness, I think I have already made the submission that “reasonableness” in the context that we have been talking about in our submissions involves not only physical circumstances, but also the absence of persecution for a Convention reason. The question of whether the respondent could reasonably cease conduct that has attracted adverse attention from the Taliban or would expose him to risk goes both to why he is outside the country of nationality and whether any harm that he fears is for a Convention reason.
The closeness of this case with the relocation principle – I have already spoken of. We say that relocation provides as least a useful analogy. It may even be thought of as a subset. Here, what the Tribunal is envisaging is the applicant changing one of the things that will ordinarily be changed when someone relocated from one place to another, or at least would most commonly change when a person relocated from one person to another.
In relation to relocation, and in relation to the way in which the present appellant sought to draw upon relocation, the majority’s reasoning occurs at paragraphs 78 to 82, this is the seventh point in our outline, and we say that that reasoning involves significant error because at the very point that to require this man to give up his occupation does not involve him denying any of those things that the Convention is seeking to protect that are expressed in the various Convention reasons. In SZATV this Court ultimately found that there was a jurisdictional error in the Tribunal’s approach to the relocation question because in SZATV the relocation findings envisaged the applicant, who was a journalist, giving up a position where he was expressing political opinion, he was expressing his political opinion, and that is a factual finding in that respect in SZATV in paragraph 29.
SZFDV, which was a judgment of the same Bench handed down at the same time[2007] HCA 41; , 233 CLR 51, reached a different result because there there was no abnegation of a Convention trait involved in what was being envisaged by the Tribunal. The person was not being required to give up the expression of any opinion which was protected, and that is clear when one looks at SZFDV at paragraphs 15 and 16. Could I also say that if one goes to the judgment of Justice Callinan in SZFDV, again SZFDV is [2007] HCA 41; (2007) 233 CLR 51, in paragraph 50 Justice Callinan says:
Subject to what I have said - - -
FRENCH CJ: Page number please?
MR JOHNSON: I am sorry. Page 64, your Honour.
FRENCH CJ: Thank you.
MR JOHNSON: Page 64, paragraph 50. Justice Callinan says:
Subject to what I have said in SZATV v Minister for Immigration and Citizenship, I agree with the conclusions of Gummow, Hayne and Crennan JJ in this appeal. I do not read the Tribunal here to have assumed or expected, on relocation or otherwise, the silencing of the appellant’s political views. Indeed, the Tribunal’s reasons [remain] focused upon, and correctly identified, the activities in which he was involved and the controversy to which they gave rise as effectively exclusively local.
So that was the reason for the different outcomes in SZFDV and SZATV. The examination by the majority of those cases and of what the respondent was saying in relation to relocation failed to, with respect, acknowledge that, and involved the conclusion that the mere fact that driving a truck carrying building materials had previously led to an imputation of opinion was enough to make it protected. Their Honours saw the suggestion that he should not – that he not drive trucks – as being something which was therefore contrary to the object of the Convention. In our submission, it comes back to the central point that we are making, that is what protected is the expression of the rights or traits embodied in the Convention reason. It is not enough simply that the conduct of driving a truck has previously led him to be attributed with a particular view, regardless of whether that attribution continues.
The ninth point – I am sorry, I skipped over one. I am sorry, your Honours. There are two authorities that I meant to mention to your Honours, really under the heading of “purpose”, which I might just briefly give. Firstly, in the New Zealand Refugee Status Appeals Authority judgment in Refugee Appeal No. 74665/03, delivered by R.P.G. Haines, QC - your Honours have a copy of that - at paragraphs [81], probably particularly [81], but [82] and other paragraphs are also relevant. Just focusing on paragraph [81] for a moment which, on my print, is at page 35. It is said that – this is probably about 10 lines from the end of the paragraph:
all five Convention grounds refer to characteristics which are either beyond the power of the individual to change, or so fundamental to individual identity or conscience that they ought not be required to be changed –
At [82] there is also comment on another subject, the distinction between core and marginal affectations of rights and how that may go to persecution.
HAYNE J: What is it that you want us to take out of this?
MR JOHNSON: Particularly, your Honour, the way in which these Convention reasons are embodying certain qualities which meet the description that Mr Haines is there speaking of which are expressed in the Convention reasons. What we are saying – this is a part of our reason for saying to your Honours that having regard to that purpose of the Convention as being concerned with the safeguarding of those traits, those qualities, it is not enough simply that an activity be one which has led to imputation.
GAGELER J: There are much clearer and stronger statements in recent decisions of the United Kingdom Supreme Court in cases of HJ and RT.
MR JOHNSON: Yes. In RT - - -
HAYNE J: Administrative decision-maker in New Zealand.
MR JOHNSON: Yes. I have just been reminded - - -
FRENCH CJ: Was this case mentioned in a decision of the United Kingdom Supreme Court?
MR JOHNSON: Yes, both - - -
HAYNE J: Well, let us go to the UK.
MR JOHNSON: It has been mentioned in HJ (Iran) and in RT (Zimbabwe) and perhaps it is sufficient for me, I think, to go to RT (Zimbabwe) and Ors v Secretary of State for the Home Department and if your Honours go to paragraph 25 your Honours will see the statement that:
The Convention reasons - - -
HAYNE J: What page?
MR JOHNSON: This is page 11.
HAYNE J: Thank you.
MR JOHNSON: Your Honours will see at the end of paragraph 25 the sentence - - -
KIEFEL J: Page 169.
HAYNE J: Thank you.
MR JOHNSON:
The Convention reasons reflect characteristics or statuses which either the individual cannot change or cannot be expected to change because they are so closely linked to his identity or are an expression of fundamental rights.
GAGELER J: That is to be read with the explanation at paragraph 18 of the earlier case of HJ?
MR JOHNSON: Yes. Then in relation to the judgment in NALZ, the appellant referred to NALZ and sought to derive some assistance from it. The appellant’s case is not dependent on NALZ and the judgment of Justice Flick in this case, which the appellant submits ought be followed, demonstrates that. The one point we do make about NALZ is that the Taliban targeting drivers carrying building materials is relevantly no different than from the Indian Government targeting people supplying, at least indirectly, the LTTE with electrical or other goods. In both cases, the conduct was outside the scope of the Convention. It was not enough merely that it led to the imputation of some political opinion.
HAYNE J: The factual identity or analogy leads us nowhere, does it, Mr Johnson?
MR JOHNSON: Ultimately, that is probably correct. NALZ might be of some use in helping to identify some of the limits of this, but it is not by any means indispensable to our argument and, indeed, Justice Flick - - -
HAYNE J: The bottom line is it does not bind us. The question is what is the principle that you say is to be applied?
MR JOHNSON: That is so. In relation to his Honour Justice Flick, we made the submission, of course, that his Honour’s approach should be preferred. If I could just take your Honours to his judgment briefly - it is particularly all of paragraphs 6 through to 9, and 15, which are ultimately important. Could I just perhaps start - - -
KIEFEL J: What is the relevance of saying that the behaviours of driving a truck are not directly protected by the Convention when we are concerned with an imputed political opinion as being the source of protection, or the reason for the protection?
MR JOHNSON: Because the driving of the truck was not the expression of one of those things which are protected by the Convention.
KIEFEL J: What does that matter if we are talking about a person who has imputed to him a political opinion?
MR JOHNSON: The fact that he has an imputed political opinion in this case may very well, or would, expose him to a well-founded fear of persecution if he was in a position where, on the Tribunal’s findings, the threats of instinct could be exercised. But if we are talking about conduct which has merely led to imputation of opinion as opposed to conduct which is part of the expression of an opinion that makes a lot of difference at the level of whether or not it is something that the person can reasonably be expected to change.
KIEFEL J: Well, that is by way of saying, do not do what you are doing so that you will not have the political opinion imputed to you.
MR JOHNSON: That is right, but there is no harm in doing that if the person doing what the person is doing is not something which is in fact part of the expression of one of those traits.
KIEFEL J: I understand what you are saying.
FRENCH CJ: The imputed political opinion is not conditional. It is not something that he can actually change because the Taliban leader has given him the mark of the beast. He is to be killed. Is that not right? So the only way to be safe is, first of all, stay in Kabul, and secondly – well it is almost a corollary of that – do not drive trucks outside Kabul.
MR JOHNSON: That is right.
FRENCH CJ: It is a very different situation from saying “I will just change an activity which is not a Convention trait” when one is examining its connection with the causal connection between the fear and the absence from the country of nationality.
MR JOHNSON: There is a question of fact for the Tribunal as to what he can reasonably be expected to do, if anything, to not have a well-founded fear of persecution in Kabul. What we say is that the Tribunal’s findings of fact that he could stay there, changing his occupation, were findings of fact that it was entitled to make.
HAYNE J: You have to go so far to say that not only are those findings of fact, but they go to the point of saying that it might reasonably be expected of this applicant that he would do that.
MR JOHNSON: That he would remain in Kabul.
HAYNE J: That he would remain in Kabul, not leaving.
MR JOHNSON: That is right.
HAYNE J: Where in the Tribunal reasoning do I find its consideration of the question that it would be reasonable to expect of the claimant that he do this?
MR JOHNSON: Well, in paragraph 130 the Tribunal makes findings to that effect. It says that it has spoken of Kabul as being his home region. It is already noted, of course, previously, that he and his family have already moved there and at paragraph 130 they say that:
The Tribunal is satisfied that the applicant could reasonably obtain relevant employment in Kabul so that he would not be obliged to travel between Kabul and Jaghori to make a living.
HAYNE J: Yes, I have read it – but what is the high point from your side for the proposition that the Tribunal has asked itself the question, would it be reasonable to expect this applicant to do this?
MR JOHNSON: The high point must be paragraph 130 because that is where the Tribunal uses the word “reasonably”.
HAYNE J: Yes.
MR JOHNSON: But it has to be read in context, and everything which occurs in 130, including that last sentence, and including the things which it says then later in the page about effectively having community in Kabul in paragraph 132.
I think there are probably only two paragraphs of Justice Flick’s judgment that I need actually read. I have previously made the submission that – because we are relying on all of it, but if your Honours go to paragraph 9, which is on page 257 of the book his Honour says:
It is accepted that a claimant should not be expected to take “reasonable steps to avoid persecutory harm” where that harm directly relates to a characteristic that the Refugees Convention seeks to protect. It is clearly inappropriate to require claimants to “hide” their anti-government political views, or to be “discreet” about their homosexuality. The protection afforded by the Convention would be seriously diminished if it were otherwise. But the Convention does not relevantly seek to provide a right to engage freely in behaviour unrelated to the specified categories of protection, when such behaviour may result in the imputation of a particular political opinion.
Then in paragraph 15, starting from the second sentence, I think, his Honour says:
Albeit a process of reasoning which could well have been better and more clearly expressed, the constitutional that the Tribunal’s process of reasoning does not fall foul of S395 is to do no more than to apply the language employed in S395 by reference to the facts of that case and to apply that language in the context of Article 1 of the Refugees Convention and the objects of that Convention. It was simply unnecessary on the facts presented in S395 for their Honours to address the relevance of a claimant being required to modify or change his behaviour in a manner separate from the manner in which he expressed his sexuality. And it is no part of the protection afforded by that Convention to confer a licence or a protection upon persons to engage in forms of conduct divorced from the manner in which (for example) a person may practice or espouse his religious or political beliefs or opinions.
Then he gives some examples.
FRENCH CJ: That rather restrictive approach, if you like, to the purpose of the Convention, while I understand it is tied to the language of Article 1A, when you look at the preamble to the Convention, and particularly the expression of the reference to the Universal Declaration of Human Rights and the manifestation of the United Nations’:
profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms –
there is a tension between that sort of overarching philosophy, if you like, behind the Convention and the application of constraints upon location and upon activity which can take you outside its protection.
MR JOHNSON: But, it is well recognised that the Convention is not protecting all forms of persecution.
FRENCH CJ: No, no, but I am just asking what informs these causative judgments that one makes informed by notions of reasonableness and so forth when one looks to that larger setting in which the Convention is placed.
MR JOHNSON: Yes, yes. But ultimately we say it is important that what the Convention is protecting is not just persecution generally, it is persecution where there is a well-founded fear of persecution for one of those Convention reasons and if the conduct in question falls short of the expression of one of those Convention reasons well then it is not protected in the same way that the political opinion or religious opinion is protected, or a person’s sexuality.
GAGELER J: Even if it would involve giving up or denying a fundamental human right.
MR JOHNSON: There can be overlap, obviously, between these Convention reasons and human rights and the cases that your Honour has spoken of illustrate that, but ultimately we are not just concerned with any human right or even any important human right. We are talking about the particular rights which are embodied relevantly in those Convention reasons.
GAGELER J: Well, on your argument we are looking at the words “owing to” - - -
MR JOHNSON: Yes.
GAGELER J: - - - and we are reading those as incorporating a test of reasonableness. Why would not that test of reasonableness have regard to the larger human rights framework within which this Convention sits?
MR JOHNSON: Well, the obligation only arises where the State cannot protect and what we have here, in the appellant’s submission on the facts as found by the Tribunal, is a situation where Afghanistan can protect the applicant in Kabul.
HAYNE J: That is reverting to the now discarded notion that the resort to the protection of the government of nationality is resort to internal protection. The protection that the refugee will not avail himself/herself of is diplomatic or consular protection.
MR JOHNSON: Well, yes. But if the person, as Januzi demonstrates, and its adoption of SZATV, if the person can find protection, can find a place where he or she does not have a real-founded fear of persecution in a country, then the person is not outside the country for that reason. So, your Honours, what we say ultimately is that the approach of Justice Flick should be preferred, that what the Tribunal has done is not contrary to S395 and we are not, as the respondent would put it, applying a lesser standard in cases of imputed political opinion. We do not dispute for a moment the proposition that somebody can have a well-founded fear of persecution because of imputed political opinion.
We do not dispute the proposition that one looks at the motivation of the persecutor but if we get to the level of looking at what reasonable adjustment can be made, then if the conduct that we are talking about is merely conduct which has led to the imputation of a political opinion, if it is not conduct which is the expression of one of those characteristics protected by the Convention, then in the appellant’s submission the text of the Convention and the purpose of the Convention have the consequence that there is no error by an approach such as the Tribunal has taken in this case.
Could I also mention just a factual matter to your Honours? It relates to that letter at page 149. The letter was, in fact, addressed to the people in the Khogyani district. It was addressed to the local people. The first paragraph speaks of “informing the local . . . people” and the Tribunal was aware of that and that was one of the reservations that it expressed about the letter even though it ultimately accepted the letter and acted upon it being genuine, that the threat was not being made to the whole country, it was being – I am sorry, the letter was not being sent to the whole country, it was being sent to a particular local area and the Tribunal was satisfied that he would not be pursued in Kabul. If your Honours please, those are the appellant’s submissions.
FRENCH CJ: Thank you, Mr Johnson. Yes, Mr Lloyd.
MR LLOYD: Our basic contention is that the present case is governed by the principles enunciated in S395, the Minister has not sought to overrule those principles, the Tribunal did not apply them, that is common ground, and if they were applicable that would be jurisdictional error – I think that much at least also was common ground – the courts below did not err in concluding that S395 stated applicable principles. We would say, in any event, the Minister’s proposed approach is not supported by the language of the Convention and is not workable. We would say even if against all of that we were wrong, the respondent would still succeed on the appeal because the Tribunal did not properly apply the Minister’s new test and further inquiries would have had to have been made in respect of my client.
Against that background, we have set out seven points, some with some sub-points. I propose to pursue it in that order. I can conveniently deal with the first two and two sub-points together by going to S395, but before I do if I can kind of crystallise where we say at least is one of the key differences between the parties. We say when one looks at the definition of “refugee” in Article 1A, in a sense the first step is to ask the person “what do you fear?” If they do not have a subjective fear, it is over. If they do have a subjective fear, then an assessment has to be made as to whether that fear is well founded. The answer to that question, we say – the Minister disagrees – requires you to ask what would happen if you return the person to the country. That is how you know it is well founded. You ask and answer that question.
It may well be that you say, if we return the person to that country he would be killed. That would be a relatively easy and straightforward answer in the assessment. But there are cases, perhaps like this case, where you could say, if we send him back he faces fear because of a particular factual matrix and he would be able to avoid, or at least minimise, the risk of that fear. As a result, I find that what would happen is he would take this avoidance activity. Then the question is, having regard to the fact that there is perhaps some risk that the avoidance activity will not work but also that the avoidance activity itself might involve levels of repression, is the person being persecuted in that matrix?
That is how we say it should be done. That is how this Court in S395 said it should be done. The Minister says no. They go back to case law before S395, case law expressly rejected in S395. They say, no, no, what you can do – not in respect of homosexuals, which they say is how they distinguish S395, that is different – but what you can do is you can say, you do not have to find out what would happen upon his return if you can say he could reasonably do something to avoid the harm. If that is the answer, then the harm should be characterised as – well, there is either two ways of putting it and my friend put it both ways.
Either, if you can reasonably avoid the harm, then notwithstanding that the finding might have been that there was a well-founded fear of harm from what the person would do, if you can reasonably avoid it, you could characterise it as not being well-founded, or alternatively, you characterise the person’s fear in Australia as not being owing to a well-founded fear. So, putatively, there might be a well-founded fear. We do not care because we think he could reasonably avoid it. So they say that is how the law should proceed and that is what the law is, except, they say, when taking into account what is reasonable or what you could reasonably do, you could not ask somebody to, they say, abnegate a Convention trait, as if there is such a thing.
Now, they say the Convention is there to protect expressions of things in the Convention. That is not what the Convention says. The Convention in fact does not, strictly speaking, talk about protection at all. It obliges Australia to not refoule people who are refugees. It protects people and it protects them from persecution motivated by particular categories of harm.
Now, ultimately, I accept that in a big picture one can say, well, it kind of encourages the global protection of free speech, say, or ethnic origins, if that is something one can protect, or express for that matter. How nationality is expressed is not entirely clear but, anyway, that is what they say. We say no, that is not what the language of the Convention says. It does not talk about Convention traits and the idea of a Convention trait is itself extremely problematic.
I will take the Court a bit later to one of the cases expressly overturned in S395 called LSLS where, prior to S395, the process that the Tribunal went through was to say - it is, like many of the cases were, a case involving homosexuals - but they would say “I think you could reasonably be returned if you – we accept that you might have to be able to have sex” - that is a tick – “we would not stop you doing that so long as you could meet somebody but be very discreet about it. That would be reasonable.” There is a whole line of cases along that line.
Ultimately, S395 was not in that line of cases but this Court overruled that line of cases as part of their analysis of saying no, that is not right, first of all you have to say what would happen and then you have to analyse. Where the answer is they would modify their behaviour to be discreet you then have to analyse whether or not that would constitute persecution for any number of reasons.
GAGELER J: How do you deal with the relocation cases?
MR LLOYD: Well, in my submission, the relocation cases are entirely consistent with that. So if one takes SZATV, what happened was, in a conceptual sense, there was an immediate acceptance that Mr SZATV could not go back to his home place because he was a known journalist there and he feared harm there. There was then an assessment as to whether he could go somewhere else and what the Tribunal said, certainly as it was understood and we certainly submit correctly, it said if you went somewhere else and worked in the construction industry like you did in Australia rather than as a journalist you would be okay.
That was found to be in error, because entirely consistently with S395 and relying upon S395 this Court said you cannot do that. You have to ask what would he do and they did not ask what he would do. They said you should have to – you should – it is reasonable for you to give up being a journalist and the Court rejected that and allowed the appeal.
That can be distinguished from SZFDV which was a case when somebody said he feared persecution from mill owners in Tamil Nadu and the Tribunal found that he could go to Kerala and, in essence, and this is made clearest in the passage my friend took the Court to in Justice Callinan, he would have no fears. The Tribunal did not suggest that there were any constraints upon him in Kerala. So in that sense, the Tribunal had found what would happen to him in Kerala which is he could anything he wanted. There were lots of communists there like him. There was a suggested he was free to do what he wanted in Kerala.
At that point, the reasonableness comes in to say are there other factors apart from a fear of persecution that might make it unreasonable, and what the tribunals do and these courts have always said is the appropriate thing to do, is to consider, as it were, subsistence issues. Would the person be able to subsist there? Do the people in this other place speak a different language? Could he get a job? Could he actually live in that place? That is what the Tribunal did in SZFDV and we say that that is completely consistent with S395.
In all of the cases you ask what would happen upon return and that can include what would happen on return to a different place. If the answer is, he would be persecuted in a different place, then it is not a viable alternative place. But the answer might be, he has no well-founded fear of persecution in the different place but it is disease ridden, they have bad hospitals, he cannot get appropriate medical care, he does not speak the language and he could never get a job and would starve to death. In those circumstances, that is where the reasonableness test comes in, in the relocation principle.
GAGELER J: Do you say the relocation principle turns first on making a prediction as to what this refugee applicant will or would do if returned to the country of origin, and only after that prediction as to location is made a question of reasonableness arises? Is that the way you put it?
MR LLOYD: I am not suggesting that the relocation principle involves a prediction of where they would go, because Australia is in fact removing them to somewhere and Australia’s obligation under Article 33 is to remove them not to the frontiers of where their life is threatened. So the starting point – and I do not suggest there is anything wrong with the starting point – is to first of all ask can they return to their country and nominally their place where they came from originally. If they can go safely back there and they are able to access that place and there is no well-founded fear of persecution there that would be the end of the matter.
If, however, you find that there is a well-founded fear of persecution there, then the relocation principle says, well, is there another part of that country which is not in the frontiers of persecution where Australia could return them and then what would happen there? So in SZATV there was a place in the south of the Ukraine where the person could have been returned and if he did not work as a journalist he would have been fine. What we said is – what this Court said and what we say – what this Court said is, well, you cannot say that. You cannot expect him to give up his job. That is not the test. You have to see what he would do.
HAYNE J: Well, Mr Lloyd, you say that is what this Court said. I think you might need to go back and read with some care the stepping through of the argument in the reasons in SZATV. The error which the Court found was an error in the Tribunal’s formulation of the question. The conclusion at paragraph 32 is:
By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his “relocation” in Ukraine.
That is the conclusion. The way in which that conclusion is reached depends first upon stepping through the analysis in Januzi, then going in paragraph 23 to what the Minister’s submission was, paragraph 24 - adding to that proposition what appears in paragraph 24, notably:
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 -
MR LLOYD: Yes, and that is entirely, we say, consistent with what was said, so you need to find out what the impact would be if they were returned to that place. What would happen to them? That is, we say, the same question. There is a reference to S395 in paragraph 28, then in paragraph 29, 30 and 31, ultimately in 31 noting that it was beyond flirting with error at the point of the analysis in paragraph [79] which is set out in paragraph 30, which is where it was said there “While he may not be able to work as a journalist”.
Now, in the context of that case, that was a finding that he would be okay if he worked as something other than a journalist, but he would not be okay if he worked as a journalist, and we say that it was flirting with error at the earlier mention. In paragraph [79] they said it “went beyond flirtation”, which we infer to mean there was error, and there was error because, at least in part, relying on S395, that there was not an assessment of what would happen to him if he went to that place.
GAGELER J: Mr Lloyd, going back to your questions that you said need to be asked in any case. On one view, what the relocation cases might suggest is that the questions go something like this. Question one – do you have a fear? Question two – if so, is that fear well founded? And then, question three would be something like – given that well-founded fear, is it reasonable for you to be here, and not in your country of origin?
MR LLOYD: Well, your Honour will not be surprised to know that we say that that is not a required step, that the “owing to” is just a fact. It is a factual question, not a judgment. So it is a causation question. Now, the difficulty my friends have is if one sees it as a causation question and one says, as they say, well, you could do things to avoid it and it is like a novus actus interveniens on the causation, you could give up truck driving. Well, that is true, but then if that is the test and that goes to causation, then you could give up having a political opinion. You could give up having a religion. There is not, we say, a novus actus interveniens there that the Convention test does not expect – does not have a voluntariness loop whereby if you could voluntarily give up something that attracts Convention persecution, then it is out but only out if it is reasonable or not reasonable.
We say the question is, is there a fear? Then looking at the facts pertaining to that person, is that fear well founded? Then if you are outside of the country, you have the fear; the fear is well founded, having regard to what would happen if you return, then there is a factual question that you are outside the country owing to that fear.
FRENCH CJ: That might be a convenient point. We will adjourn until 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Lloyd.
MR LLOYD: Your Honour Justice Gageler before the luncheon adjournment put to me a possible structure of being a three-tier test: one, fear; two, well founded; and then the third tier is where there is ability to say the “owing to” limb where a reasonableness concept could come in. Now, I think I answered that as to why we say that is not the test, but can I go one step further and say even if it were the test we would still win this appeal because it is unambiguously not what was done in this case.
On that analysis one would say this is what you feared, the well-foundedness test still, as we say it inevitably must be, a question of what in fact is likely to happen on return and then the third limb that could conceivably, if that test were right, allow my client to be refused would have the Tribunal saying – maybe if I go back and put in a scenario.
Option one is “I fear this, and the fear is not well founded”. Just on the facts it is not well founded. That would be the end of it. But option two is, which allows the “owing to” to have work to do, if there is a fear it is well founded but I think there are things you could do that could avoid the fear that you have which is well founded, notwithstanding that I accept you are saying you are not going to do those things and I believe you will not do those things, but still there are things you could do reasonably that would avoid it.
Then what the Tribunal should have found is that the fear is not owing to that, but that is not what the Tribunal found. The Tribunal found there was “no real chance”, which is the language of a well-founded fear. So what the Tribunal has done is say what is the fear and then, without finding out what would happen in the sense of factually what would happen, just say “I can see a way that you could avoid the fear and so therefore it is not well founded.”
That is a different approach. In my friend’s submissions in reply they castigate us about five times about ignoring that the reasonableness test comes under the “owing to” limb. But if they are right about that, they still lose because it is not what the Tribunal did in this case. What they need the test to be is something which says that it is acceptable to say “fear” and do not care whether or not it is well founded, do not have to look at that. If I can come up with a way whereby you can avoid it and it is reasonable, then you are not a refugee.
KIEFEL J: Well, the Tribunal here said that that was by way of answering the question whether there was a real chance of persecution. The fact that they addressed themselves to that question, that is not itself incorrect. I mean you are not saying, are you, that they posed the wrong question for themselves by saying is there a real chance of persecution rather than looking at the causal connection test?
MR LLOYD: No, no. What we say is they needed to ask whether the fear is well founded.
KIEFEL J: Yes.
MR LLOYD: That required them to ask themselves what would happen if we were returned and they did not do that. That is the thing they did not do because if they had have done that - - -
KIEFEL J: You mean they missed a premise and went straight to “is there a real chance?”
MR LLOYD: Well, they went straight to “could you avoid something?” So what we say they should have done is they should have said, “Well, on my findings, I think there would be a real chance if you drove a truck.” That seems to be logical from what the Tribunal has found. Then they should have said, “You have said to me, you have made the claim that you would drive a truck upon return”. Now, I decide whether or not that is true or not. Would you drive a truck? If the answer is yes, then the fear would be well founded. If the answer is no then one does what S395 says one has to do, is go to the next tier and say, well, if the answer is no, why is it no and if it is no because you would take certain avoidance action, does that avoidance action, plus the possibility that the avoidance action would not be successful still leave a possibility of fear?
Now, they, at the most generous possible view of what the Tribunal did, cut to that limb without asking the first question of what would we do. They did not find that we would not drive the truck. If they had found that, then there would be a lot less to complain about. Ultimately, that is what we say S395 [2003] HCA 71; 216 CLR 473 is about, and if I can ask the Court to go to that. I note the joint judgment of Justices McHugh and Kirby begin at paragraph 16 on page 482, but if I go to page 487, paragraph 34:
Much of the appellants’ argument in this Court was directed to the claim that the Tribunal had required them “to be ‘discreet’ about their membership of a group”.
Now, because that was how it was put that, at least in part, led the Court through the cases whereby perhaps more obviously than the underlying decision in S395, tribunals had required people to be discreet in particular ways and why a broad approach to the principles was taken. Then one sees on page 489 there is a kind of a thought stepping stone in the last sentence of paragraph 39:
If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide – whether the appellants had a well-founded fear of persecution.
Then in the next several paragraphs there is an explanation for why it is an error of law to just look at whether the person can avoid harm. In paragraph 40 the first paragraph identifies the purpose of the Convention and there is obviously nothing there about – it does not protect people if they can reasonably change to avoid harm. Then, from about the middle of that paragraph, starting with “The Convention would give no protection from” their Honours look through each of the Convention bases, so they look at “religion or political” in the first sentence then a “particular social group” and the particular social group problem, we say, is a significant problem for my friend’s case because if they are right then one asks, well what is the Convention trait?
Now, my friends said that there was no finding of a particular social group in this case. The majority of the court below found that there was an implied finding that there was a particular social group, so to that extent we say my friend is wrong. So, as things stand, and there is no appeal on that ground, there is a conclusion that there was a finding of “particular social group”, but in any event, the worst case scenario for my client is, we made a claim about a particular social group and it was not rejected.
Now, if driving these trucks constituted a particular social group one would say that at least one of the Convention traits that is being protected is their ability to continue their membership of that group, which is to continue to drive trucks of that description.
GAGELER J: Well, Mr Lloyd, that is really quite inconsistent with the way in which the question of particular social group has been approached in the United Kingdom. Have you looked at the case I mentioned this morning?
MR LLOYD: RT or HJ?
GAGELER J: The one I could not pronounce – Ouanes.
MR LLOYD: I have looked at a summary of it. It says, as I recall – at least the quoted part that I saw said that occupations would not ordinarily give rise to a particular social group, but that in itself leaves open the possibility that in a particular factual case they could do. In Australia there are cases, including from this Court, where occupations have been recognised as particular social groups. They are in footnote 39 of our submissions. I think beauty industry workers were found to be one. Prostitutes were found to be a group. In Dranichnikov Russian business people were found to be able to be a particular social group - - -
KIEFEL J: I think Dranichnikov had an extra element – it was a businessman who was outspoken against the government.
MR LLOYD: That is true, your Honour, but the first point is everyone accepted that there could be Russian businessmen – which is an occupational group – was a particular social group. What Mr Dranichnikov was saying is that I did say that group, but I also said an extra element, and what this Court said was, yes, you had to even consider the extra elements, and not only could occupations be particular social groups, subgroups of occupations could be particular social groups, such as drivers of trucks carrying construction equipment.
Why are they identified as a particular social group? They are not hidden. People can see them in trucks. They are big trucks. Construction equipment is visible, and the persecutors, who perhaps play a part in establishing as a particular social group, they see what is happening as an expression of action against their will and therefore target them, and so, we say that there could be a particular social group.
We say that the court below approached the matter on the basis that there was at least an implied finding that there was in this case – that is at appeal book 275 over to 276, in paragraph 57 – suggests at least an implicit acceptance by the Tribunal of the respondent’s membership of a narrower social group.
My friend made this point earlier about two issues that he says we do not have a notice of contention on. One of them is we did not put a notice of contention that there was an error in failing to make findings about our actual political opinion. The other one is said that we did not make a notice of contention in relation to the PSG claim. What the judge at first instance found was not that the PSG claim – if I go back a step, the claim put to the judge was that there was neither findings on actual political opinion or on particular social group. Judge Nicholls said there was not a finding on actual political opinion, but because we only said it once, there did not have to be.
In relation to particular social group, he said it was addressed by the same analysis as the imputed political opinion. He did not say it did not have to be addressed and it was not addressed. He accepted that it was addressed, and in the court below the majority justices concluded that there was a particular social group. We certainly say there can be, but in any event, although my friend has taken the Court to Applicant A and other cases, the position is that it is not challenged what was in the court below, and it is at least arguable that there could be a particular social group and - - -
HAYNE J: To which ground of the Minister’s appeal is this argument directed?
MR LLOYD: The relevance for us is, we say, even if we are wrong about the matters I have not actually got to yet, and their test is right, and one has to look at whether or not it would abnegate a Convention trait, that would mean for that test to be applied, the Tribunal would have had to find whether or not there was a particular social group of which my client was a member, and identify what were the Convention traits of the particular social group of drivers of these kind of trucks, and then work out whether or not forcing us not to drive those trucks would amount to an abnegation of that protected expression of our membership of that particular social group.
We say all of that is wrong and misconceived. But if we were wrong about that, then we say we would win, even on their test, because the Tribunal did not do that. Their answer is we are not a member of a particular social group. We say the Tribunal never found we were not a member of a particular social group and that the court below said that, impliedly, we were. Their other answer is we could not lawfully be, and we say that is not part of their appeal; they did not appeal the finding in paragraph 57, and in any event, it is a question of fact whether or not some things are a particular social group, and it is not a situation where the group is defined only by fear.
A case of that kind is if one says there is an offence against shoplifting, and then you say there is a particular social group of shoplifters, and you say they do not interact, no one sees them as a group, they are just seen as individuals who commit offences and the only thing they have in common is that they commit the offence. But here, people drive trucks with this equipment irrespective of what the Taliban think of that activity. They were doing it, and certainly as indicated by Justice McHugh’s discussions in Applicant A, it may well be that the creation of or the identification of or the direction of persecution can help form a particular social group, but it is not right to say that the group defined in the way that was advanced by my client could not, as a matter of law, be a particular social group.
We say that is not even properly before this Court. So I think I was back in S395 and making the point in paragraph 40 that the comments, the discussion at this point is directed to the full breadth of Convention cases. It is not limited to particular social groups which is what the case was about, extended to political opinion and to other factors. Then in paragraph 41, the last two lines:
The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership -
By asking someone to leave their particular social group is that and asking someone to not express a political opinion is also that.
FRENCH CJ: This is a case, is it not, in which, on the Tribunal’s approach, we have the premise that a person, that is the respondent, has a well-founded fear of persecution for a Convention reason, inside the country of nationality unless that person adopts certain self-imposed constraints on location and/or behaviour inside the country? That is the effect of part of the Tribunal’s finding, is it not? There is a well-founded fear of persecution inside the country of nationality unless the respondent adopts constraints on where he lives and what he does.
MR LLOYD: I think implicitly there is a finding that there would be a well-founded fear of persecution if he continued to be a truck driver, so unless he does something else.
FRENCH CJ: Yes, so if the well-founded fear is negatively conditioned on the acceptance of constraints if he is back inside the country and then is not the question whether the person is outside the country of nationality owing to such well-founded fear, and I do not quite understand why you resist the notion that a criterion of reasonableness might inform that judgment of causation by reference to the nature of the constraints which would be necessary to avert that well-founded fear inside the country of nationality.
MR LLOYD: Well, if that is part of the test, then I accept that that would have to be looked at and it was not looked at. But we say that - - -
FRENCH CJ: I am just trying to work off the language of 1A.
MR LLOYD: Certainly. We say one finds out what the fear is, one has to assess then if it is well founded and that can have at least two elements. The first one is to find out what would happen - - -
FRENCH CJ: Well, we are in the territory. He has got a well-founded fear, has he not, based on an imputed political opinion?
MR LLOYD: But what S395 says is that you need to find out what would happen, and what the Tribunal has done in this case is said, well, if you did this there would be a well-founded fear, but if you did that there would not be one, and that, therefore, is not finding out what would happen but it is trying to cover both bases and then saying it is reasonable to do that.
We say what you are required to do is say what would happen, and if the answer to the question is, my client as indicated by the fact that upon getting the threat from the Taliban, he sold up and ran away, they might say, I do not believe you would be a truck driver again. Then, and as a result, I believe you would be discreet and I think you would just stay in Kabul. If we sent you back you would stay in Kabul and you would be discreet and you would not be a truck driver and you would not attract the attention of the Taliban.
Now, if that was the finding of fact as to what would happen, then the discussion which is in those UK Supreme Court cases and my friend’s New Zealand RRT type case comes in to say, would that be persecution, which is, of course, the exact question that S395 is directed to. If you say that they are going to modify their harm, you then make the finding, and if the answer is I find that you would stop being a truck driver and you would stay in Kabul, then you have to ask the question, would that be persecution?
The answer to that might be yes or no. They never asked that question specifically, but you only get to that if you negate the other option that he would be a truck driver. If that is not the position, one then has the position that you are saying I think the person has a fear of being persecuted for a Convention reason, it is well founded, I think you will go back, I think you will be a truck driver again and I think you will be killed, but because you could do something else, we are going to send you back anyway. We say that any role for reasonableness in the “owing to” limb does not allow a kind of a judgment call that you can send somebody back, in our case to their death, for a Convention reason and say that is consistent with the Convention.
GAGELER J: So how do you deal with relocation? I am just not understanding it. There are a whole line of cases that are about relocation, how does that fit within your analysis?
MR LLOYD: So we say in relation to relocation, let us say, use the SZATV fact situation. You say, first of all, can you go back to your original home? No, we find you cannot go back to your original home. You have come to Australia because you are seeking protection, but it is not a breach of the Convention for us to send you to a safe place where you will not face persecution for a Convention reason, also in your home country. So we can scour your home country and see if there is a safe place. So what you need to do is find out is there a safe place for Mr SZATV in the Ukraine.
Then if the answer to that is yes, there is a safe place – by safe I mean he will not have a well-founded fear of persecution, well founded in the way I have just described, factually well founded, he does not have a real chance of being persecuted – then the reasonableness tier comes in at that point to say, well, it is a safe place but nonetheless is it reasonable to send you there? We say that that would take into account is there a famine there at the time, could the person work, can he speak the language. They are, in fact, all the things which in these reasonable relocation cases are typically done. Can the person subsist in this place?
In SZATV we say at least that the flaw there was that they identified a place that he could go back to and if he did not act as a journalist be safe, but that is not what we say is required. There has to be a place that he does not face a well-founded fear of persecution, and on top of that, for those other factors, it has to be reasonable, and SZATV, we say at least, is entirely consistent in both result and reasoning with that and - - -
HAYNE J: You do not seek to reopen SZATV, you seek to rely upon it?
MR LLOYD: Well, in our submissions we have sought to reopen it for other reasons.
HAYNE J: Because the argument you are advancing appears to be in substantial part the argument advanced by Mr Gleeson on behalf of the appellant in SZATV, see page 19 of the report where it is recorded at about point 6 of the page:
Whether a person’s fear of persecution is well-founded is to be determined purely by consideration of what would happen to him or her upon being returned to the country of nationality.
A footnote is given to S395. To that extent, that is an argument you make in this matter, is it not?
MR LLOYD: Not precisely. As I understand it, what he was saying, what Mr Gleeson was saying was to the effect that you need to take into account whether the person would even stay in the place they were relocated to and make that finding of fact, because he might not even stay there, and absent that finding S395 precluded that. I accept that that aspect of the argument was unsuccessful, but we are not saying anything inconsistent with that aspect of Mr Gleeson’s argument, what we rely upon is the second aspect, which was successful, which was to the effect that in relation to the analysis in this case, accepting that he could be sent back to southern Ukraine, he could not be sent back in circumstances where he is being told he should not be a journalist because there had to at least be an assessment or whether he would be a journalist and whether or not he would face fear as a result of that.
HAYNE J: Do you accept that the plurality in SZATV accepted that, as the Minister had submitted, see paragraph 23, it was relevant to take account of whether it was practicable for the appellant in that case to relocate to a region where objectively there was no appreciable risk?
MR LLOYD: Well, if by “appreciable risk” that means no well-founded fear, no real risk, then, yes, we do not dispute that.
HAYNE J: That the plurality went on to say, see paragraph 24, that practicability was not a sufficient test, what was necessary was to consider the particular circumstances of the applicant and the impact upon that person, et cetera, and that is to be understood in light of what is said in paragraph 32 in the second sentence, “By this reasoning the Tribunal sidestepped”, et cetera. I am asking you what the plurality said, Mr Lloyd, is that what you say the plurality decided?
MR LLOYD: Well, I accept that it said all of those things. In my submission, paragraph 24 is simply saying, you need to look at all the circumstances. Well, we entirely endorse that, and then the first sentence of paragraph 32 says:
The effect of the Tribunal’s stance was that the appellant was expected to move elsewhere in Ukraine, and live “discreetly” so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions.
Now, that is in the context when the previous two paragraphs - that is seen as going beyond merely flirty with error, but error. That occurs after a reference in paragraph 28 to S395, and to a quote from S395 from the paragraph which I had formerly taken the Court to, which is directed to the idea – it is in the same section of the reasoning which says that there is a requirement to consider, in effect, what would be done, and so, we say, that is all consistent - - -
HAYNE J: The point you have to grapple with, Mr Lloyd, is whether SZATV is consistent with your proposition that the central question is what would the appellant do – or the claimant do. Does not SZATV show that it is relevant to take account not only of what the applicant or claimant could do, but also and critically, what it is reasonable to expect the applicant or claimant to do?
MR LLOYD: Well, I do not deny that in a relocation you have to consider what it is reasonable to expect them to do, that happens in every case, but that does not mean that the reasonable expectation limb allows for someone to be sent back to a situation where they face persecution, because it is reasonable to expect them to hide from persecution. But it could be, for example, you take into account what it is reasonable to expect them to do, if you found a place where they will not face persecution, but maybe the person is a doctor who has been qualified for 10 years as a doctor, and the only work they could get in this other place is to be a cleaner, you would say, is it reasonable to expect them to do that?
We say that that is part of what you have to do, and I have tried to express that there is a reasonableness limb in the reasonable relocation test that applies, but it does not apply to allow you to send the person back to a place where they have to avoid persecution, but if you can send them to a place where they do not face persecution at all – or at least no real risk of persecution – then you have a look to see, in all the circumstances of the case and the individual, whether it is reasonable for the person to relocate. So that is what we say – we say this case is entirely consistent with S395’s suggestion that one has to look at whether the person’s fear of persecution is well founded.
I accept it is slightly different in a relocation case, because in a relocation case the person probably – until the Tribunal or the decision-maker suggests sending you back somewhere else – might not even have a fear. So if you are from Kabul and you put on submissions about why you left Australia – I left because I had - this Taliban sent me this note and I quickly sold up and I left the country, I thought they were going to kill me – and all your evidence is directed towards that. You would not necessarily have a fear about going to the Jaghori Province, because you have not even considered that.
When the Tribunal says to you, well, what about if I send you back to the Jaghori Province? Then at that point, we say, you could only be sent there consistently with the Convention – Article 33 – if you are not sending them back to a place where they would face persecution and so you have to do the same test against in relation to anywhere that you propose so that you are not sending them back to face persecution.
May I go back to S395? In paragraph 41, there is a passage there which we rely upon, cited with approval from Lord Justice Simon Brown, and then a second paragraph in paragraph 42 identifying what the test is:
“[I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason?
We respectfully embrace that. Then in paragraph 43 –
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned –
That is because if you ask what would happen – having regard to the fact that it is not possible to know exactly what would happen but there are possibilities – within the realm of possibilities, one assesses what would happen and if what would happen is a person would take avoidance action, then as the Court said, there are further steps that need to be taken to investigate whether that would be persecution.
That is how we say is the principal way in which avoidance action is properly taken into account. We are saying the Tribunal cannot require somebody to take avoidance actions, which is what the court in this case says, but they can find that a person would take avoidance actions and then say your avoidance action, I think, would be successful and I think you would not have a well-founded fear of persecution.
That covers all the circumstances and all the concerns, really, that the Minister advances with their test as to why you can just cut straight to “is it reasonable? Are there reasonable things to be done?” That analysis comes in, but it comes in only after you have identified what avoidance action would take place and how likely it would be to be successful.
We rely upon the balance of paragraph 43. I note paragraph 48. I only just indicate that it extends to, although this case was a particular social group case, their Honours are expressly extending it to political opinion discussion. Then there is a reference in the balance of 48 which, if I just note, this shows the earlier – well, contemporaneous to S395 approach to doing things whereby the Tribunal makes assessments as to what a person should do in order to avoid harm.
I will take the Court a bit later to LSLS, which is another case, but the Court here is specifically saying that that approach in WABR of working out what a person should do or could reasonably be expected to do – that is the language – “reasonable to expect”, in the quote in paragraph 48, is wrong. Towards the end of paragraph 49:
The reasonableness of the appellant’s conduct was not relevant to either issue. In determining whether the appellant faced a real chance of prosecution, the Tribunal was entitled to consider not only the prosecuting policies of the Iranian authorities, but also the likelihood that inadvertently or deliberately the appellant might attract their attention. But the reasonableness of his conduct did not bear on the issue.
We rely upon that, and paragraph 50, where it is succinctly stated, and we say that is directly on point and is not what the Tribunal in this case did. If I just note in passing over paragraph 55, there is a reference to LSLS which is another similar kind of case where the Tribunal goes through in a painstaking kind of way to work out what are their rights, what can you expect someone to do to give up, how much and to what extent, as is put here, to what extent – the last sentence there:
“I have therefore confined my examination of this issue to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in Sri Lanka, disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established –
So what that process was to say is, well, somebody would have – members of this particular social group would have the right at least to be able to attract partners and maintain relationships. So long as they are able to do that, any other level of repression was considered to be acceptable and what the Court is saying here is – perhaps more at the WABR stage – but that that is wrong to look at it from the point of view and it will draw inevitably the Tribunal into a process of saying, well, how much, what is it reasonable to do? You would normally do this but I think it is reasonable for you not to do that.
We say the Court has expressed their conclusions broadly to include and criticise cases like WABR, LSLS because it is wrong and that that winds the approach of the Tribunal in this case. Justices Gummow and Hayne’s reasons start at 62. The principles at paragraph 72 start to be set out being drawn from the language of the Convention – the subjective fear, the objective fear test. No suggestion of reasonableness in that analysis. Then over to paragraph 78:
The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns –
So that is a factual inquiry. We rely upon all of paragraph 80 but note in particular the end:
And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
Then paragraph 82 there is a discussion in the sense, at least at the beginning, as to what “expects” could mean, which language the Tribunal used, but to the extent that it means required it would be erroneous. Then in paragraph 83:
Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning –
and then they say exemplified in LSLS –
leads to error. It distracts attention from the fundamental question. It leads to confining the examination undertaken (as it was in LSLS) merely “to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result”.
The parallel of this case is to say that the approach of the Tribunal leads to the question of would he have a well-founded fear of persecution if he did not drive a truck. Now, that is not the question. In that case I should indicate that the court ultimately found that the Tribunal, in its reasons, did make a finding as to what the applicants would do, so they found that they would be discreet and so, perhaps unlike LSLS and WABR, they were cases where they did not actually ask what would happen. S395 was a case where they did ask what would happen but then they did not go on and undertake the analysis that I have indicated requires to be done - why would it happen and would the actions to be discreet themselves amount to being persecuted.
We say that the principles of the majority apply in this case. Perhaps if I just note the reasoning of the majority which we respectfully rely upon. The majority’s reasons begin at page 261 but perhaps starting at the “Consideration” section which is at 273. Their Honours, as they say in paragraph 51, “spend a little time analysing S395”. We embrace what is said at the end of paragraph 53:
it is not relevant to consider whether the asylum seeker could live in the country of origin without attracting adverse consequences.
There are passages that are set out. Justice Kirby summarised what the passages stand for in paragraph 56 and that is set out. We respectfully embrace that as being correct and at paragraph 57 is the beginning of the analysis as to why there was a breach in this case, 57 and 58.
Then over at paragraph 61 there is an acceptance or identification of two principles for which S395 and NABD – the Court has not been taken to NABD but we certainly rely that it does stand for these two principles as well and then in 62 their Honours say the Tribunal committed errors because they had embarked on the wrong chain of reasoning. We rely also upon what is said in 63 and 64.
Their Honours went on to other reasons to identify difficulties with the Minister’s approach, so from paragraph 65 and onwards their Honours are critical of that and noted, for example, in paragraph 66, referring back to the UK Supreme Court’s view that the notion of core and marginal beliefs is unworkable and we certainly respectfully adopt that.
Their Honours address NALZ, which my friend placed some reliance upon. We respectfully adopt what the majority said about NALZ and what is already in our written submissions. In paragraph 78 there is a reference to the test of reasonableness, and 78 and 79, and we rely upon that as well. Justice Flick sought to say that those principles were not binding upon him, in essence, in paragraph 15 of his Honour’s reasons, because they were said in a different context, and then the third – or starting at the end of the third-last line - - -
FRENCH CJ: Sorry, page of the appeal book?
MR LLOYD: Sorry, page 259 of the appeal book.
FRENCH CJ: Thank you.
MR LLOYD: It is said that:
It was simply unnecessary on the facts presented in S395 for their Honours to address the relevance of a claimant being required to modify or change his behaviour in a manner separate from the manner in which he expressed his sexuality.
So it seems that his Honour is able to distinguish it because S395 was a case pertaining to sexuality and did not have broader ramifications. We say, with respect, that that is not the proper way of reading the ratio of the case. It was expressed very broadly to apply far outside the particular social group context, or that particular “particular social group” context, and it was reasoned from the text of the Convention and the processes of reasoning, we say, apply to all Convention matters and it is wrong to do this and that his Honour was wrong to seek to distinguish it.
We say that the Minister is bound by S395 unless they seek to reopen the case, which they have repeatedly declined to do, and so our principal argument is that it is erroneous to go down the path of reasoning of asking what the person could do to avoid harm. One asks what they would do. To the extent that they would do things to avoid harm, one factors that into whether or not they have a well-founded fear of being persecuted.
So I think that takes me to the end of point 2, and probably point 3 as well. Then in relation to point 4, which is really the point I was just on, or a combination of points that deal with the notion that the case is binding unless it is challenged, it should be determinative. I have made the point there was no suggestion in the cases that it is limited in the way that Justice Flick said. On the contrary there is an indication that it is meant to have broader application to other matters, including political opinion, and at paragraphs 40, 48 and 80 that was expressly said in the majority judgment in S395. The principles derive from the text and apply to all cases, irrespective of Convention nexus.
We also say that – I mean, not that reading down is the right language – but that there is no particularly clear way to distinguish S395 or to read it as not applicable to any other cases. What their Honours say about an approach is an approach to working out whether or not there is a well-founded fear. We say in every case there has be an assessment of whether or not there is a well-founded fear unless the person does not have any fears, then they would not have made a claim, and so to that extent it is not apposite to say it only applies in some limited context in which the particular case arose.
Now, the Minister’s answer is, well, it only applies in cases where the modifications would abnegate a Convention trait. That, they say, is the point of distinction. Putting aside for a moment what a Convention trait might mean, this still necessarily would involve identifying what would be done to know what modifications of behaviour would occur, because you have to – to say the modifications would not abnegate a Convention trait still begs the question, what modifications would occur? So you still have to go through the process – the factual inquiry process. The only way of avoiding that is to say, well, actually, you do not have to even care what modifications would occur, because if you are able to think of some modifications that the person could reasonably do, then it does not matter whether or not the fear is well founded because there is another answer.
We say that that is wrong, but it is worthwhile to have a look at a case called LSLS, where the approach of the Minister was something similar to it, and no doubt my friend would say they are not trying to re-enliven this because LSLS is a case involving a particular social group of homosexuals and they would not do that now, but just to see how this idea works in practice. LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211, starting at paragraph 6, the grounds of review:
The applicant’s contentions, apart from those directed to the question of bias, appear to be founded in the Tribunal’s determination, expressed in various ways several times in the determination and encapsulated as follows, at p 28:
The evidence is that [the applicant] can avoid a real chance of serious harm simply by refraining from making his sexuality widely known - by not saying that he is homosexual and not engaging in public displays of affection towards other men. He will be able to function as a normal member of society if he does this.
So that is the approach, you work out what is reasonable to do. Paragraph 7 –
Implicit in this finding of the Tribunal is the view that a level of discretion for the purpose of avoiding persecution is to be expected of the appellant. The consequential further finding of the Tribunal was that the level of discretion which it imputed as necessary to avoid persecution is “reasonable” in that it would not require the applicant to retreat from any of the identifying features of the social group –
which is presumably the Convention trait idea, so that is the same kind of thing as was being done. If one goes over to 17 – this is looking at this particular ground; there are other grounds I do not need to go to – sorry, 16:
The Tribunal based its determination, in part, on the proposition that the applicant could have no well-founded fear of persecution if he could avoid persecution by practising his homosexuality “discreetly”. The applicant attacks this approach, characterising it as an error of law –
and 17 –
The reasoning of the Tribunal on this issue does not, contrary to the applicant’s submission, render illusory the ability of the applicant to give practical expression to his sexual preference –
so again one sees this idea that it is all about, so long as you are protecting the expression of the Convention protected thing, that is okay. Then in paragraph 19, 20 and 21 – really from 19 through to 24, one sees how the Tribunal was dealing with it, so how this approach to the law was being done in practice. In the quote in 19 –
If this is taken to mean giving up a fundamental human right, then clearly the expectation or requirement is not reasonable. If, on the other hand, it means giving up something less, then it may well be reasonable.
For example, if a homosexual can only avoid persecution by avoiding all sexual activity, even consensual sexual activity in private, the requirement to do so would be unreasonable. If, however –
you could do something less. It draws in the Tribunal into working out how much. Paragraph 20, similar kind of quote in the passage –
While it may indeed, as I suggested in my own decision, be an infringement of a fundamental human right to be obliged to suppress one’s sexuality, it does not follow that it is an infringement of a fundamental human right if one is required, for safety’s sake, simply not to proclaim that sexuality openly. I do not believe there is a fundamental human right to proclaim one’s sexuality openly –
Then, perhaps, in paragraph 21, there is the linking then to the “internal flight” principle in the second paragraph there –
It seems to me that the fundamental question to be kept in mind is whether the behaviour which the applicant is required to adopt in order to avoid possible persecution is behaviour which it is reasonable, in all the circumstances, to expect him to adopt. In this respect, the issue is much the same as the issue of internal flight - - -
FRENCH CJ: What is all this demonstrating? Is it the vice of the Minister’s proposition?
MR LLOYD: Partially, and partially because – this is the exact reason; this case individually was named and shamed in S395 as being wrong by both the majority judgments, and showing a wrong approach. It is so close to the approach that they currently advocate. Other than the fact that it is in the context of homosexuals, it is not distinguishable, really, from what happened in this case. They say that is all the difference in the world, but there is nothing in what was said in S395 that said it is okay to do this if it is not going to abnegate somebody’s fundamental rights. They just say the whole approach is flawed. The approach is you work out what would happen upon the return. You do not try and work out what the person could do to avoid harm; that is the wrong question, and we say it is posed sufficiently broadly that it is binding.
I will give the Court a reference to a decision of this Court – we have provided the case, but the Court need not go to it – Victoria v The Commonwealth 187 CLR 416 at 484 to 485. That is a case where the Court said it is wrong to seek to read down the principle stated in the case by reference to whether some narrower principle could have supported the same outcome, which is, in substance, what Justice Flick has done. He says it was not necessary to reason as broadly as the Court did in S395, and that therefore it was not binding upon his Honour. We say that is contrary to principle.
That brings me then to the fifth point. Now, this deals with why we say the Minister’s approach is not correct and not a workable alternative. The approach in S395 has been adopted in certainly most leading common law jurisdictions, and we have provided a case – and again, I do not need to take the Court to it – it is a decision of the New Zealand High Court – it is called MPR v Refugee Status Appeals Authority [2012] NZHC 567, paragraphs - - -
HAYNE J: What do we get out of knowing that other countries have followed what we have done? What matters is what we have done. What is the point you are making, Mr Lloyd?
MR LLOYD: Well, insofar as – or to the extent that my friend says that the decision in S395 is not as broad as it, on its face, appears to be, and it should be read down or constrained in a particular way, we say that it is a reasoning process which has been adopted broadly and should not be read down in that way. It does not lead to curious results, it does not lead to a result, necessarily, that my client is a refugee. All that has to happen is that the Tribunal has to say, what would he do, and then that may or may not lead to the consequence that he is a refugee.
If they find that he, out of fear of the Taliban, would not drive trucks, then they can undertake the assessment that is required under S395, working out whether that modification of his behaviour would constitute persecution – maybe it would, maybe it would not – but we say that that is what needs to be done. So there is no reason to stray from or narrow the principles that I have sought to elaborate from S395 in any way, because there is no need to do it to avoid what might be seen as a curious result. The next point, (b):
The Minister’s test is not supported by the language of the Convention.
We note that there is no reasonableness test in the Convention. We have provided to the Court an extract from a recent publication of Professor Hathaway and Professor Foster, called The Law of Refugee Status. It is the second edition of Professor Hathaway’s work. It is dealing with the notion of “reasonableness” in the reasonable relocation context and the authors are very critical of that and identify a number of weaknesses and why the word “reasonableness” should not even be read in in that context. The passage where it goes from 350, well, through to 354, I suppose - - -
GAGELER J: What do we do with this?
MR LLOYD: Well, we say – what the professors say is that the language of “reasonableness” is not in the Convention and it has led to problematic – well, problematic decision-making, and to that extent we say that there is no need to impute additional reasonableness requirements here so as to allow, as it were, a judgment call. This is the effect of the Minister’s position that the decision-maker can make a judgment call which would inevitably be a question of fact – I the decision-maker think it would be reasonable if you did this or you did that, that would avoid the harm and - - -
HAYNE J: If you discard reasonableness, what are you left with – practicability?
MR LLOYD: You are left with a finding of fact as to what would happen if the person is returned. So one makes an assessment - - -
HAYNE J: That is, you necessarily seek to reopen SZATV. Why should you have that leave?
MR LLOYD: In my submission, that is what S395 stands for and SZATV does not stand in the way of that because it is entirely consistent with SZATV for the notion that when – we do not say there is a problem with looking at reasonableness but the reasonableness in SZATV, we say, could never include a situation where it is reasonable to require someone to take avoidance action. It might be reasonable to require them to do a job which they do not want to do, rather than to be in Australia and do a job they do not want to do, but I have said what I have said already about SZATV.
We say it is not only not against us but that the reasoning of why there was an error in SZATV was, at least in part because the Tribunal had not considered the safety of the return to the south as to whether or not he would be a journalist and had just said he would be okay if he was not a journalist and that is the wrong approach. Then at item C there is the notion of - - -
FRENCH CJ: We have been there and done that one, have we not?
MR LLOYD: Yes, perhaps we have. If I just elaborate it by saying – we say in our case that my client is a member of a particular social group. Obviously the principles, whatever the Court says in this case, will extend to other cases. One begs the question, what is a Convention trait for being a particular social group? If the particular social group is Russian businessmen, is doing business a trait? If the particular social group is beauty industry workers, is it working in the industry? Is it going to the shop? It is a very vague concept. It is not supported by the - - -
FRENCH CJ: You have said this to us already, I think, Mr Lloyd.
MR LLOYD: Thank you, your Honour, I will not - item 6 makes a point which I think I have also addressed is that we say that on the Minister’s test we should be successful, perhaps for either of two ways we have put it: one way that I put it immediately after lunch, because if the test was the three-prong test where “owing to” was a separate limb, there was no finding on “owing to” in this case so if that was test, they did not apply it our case.
If, however, it is my friend’s test which is just look at whether it is reasonable to expect us to do something in a way that does not abnegate a Convention trait, that would have required a finding to be made in relation to whether my client was a member of a particular social group which either was not made and therefore the test was not properly applied or was made
and the traits associated with being a member of the group of Afghan drivers was not taken into account. So even on that view, we say my client should succeed and the last comes to the point of relocation. I think I have probably addressed that along the way. May it please the Court, they are our submissions.
FRENCH CJ: Thank you, Mr Lloyd. Yes, Mr Johnson.
MR JOHNSON: Your Honours, a number of points - I will endeavour to move through them very, very shortly. Firstly, with respect to the judgment of Ouanes v the Secretary of State for the Home Department to which Justice Gageler referred us this morning. In our respectful submission, that is consistent with the Minister’s submissions. It was there said on page 224 of the report at about point F that:
The characteristic that defines the social group must, in situations such as the present, be one that the members should not be required to change because it is fundamental to “their individual identities or conscience.”
The case itself was concerned with shared duties in midwifery. In relation to that, it was said at G to H:
Shared duties in midwifery do not come within that principle. The expression “particular social group” does not in my view ordinarily cover a body of people linked only by the work they do. A common employment does not ordinarily have that impact upon individual identities or conscience necessary to constitute employees a particular social group within the meaning of the Convention.
With respect to my friend’s submissions, firstly, we do not apprehend the respondent to have ultimately asked for SZATV to be reopened. There was a submission made by my friend that it was Article 33 rather than Article 1A(2) that provided the textual foundation for the relocation principle. We say no and we say that SZATV is authority for the proposition that it is in fact the language of Article 1A(2) that provides the textual foundation. We then made some submissions about that in paragraphs 17 to 22 of our reply and we would add that even if Article 33 did help support the relocation principle in some way that would not justify ignoring the causative component of Article 1A(2) in the way that the first respondent does.
Thirdly, the appellant is not, as my friend put it, going back to LSLS or taking the same approach as was criticised in S395 to the extent that S395 was speaking of LSLS. LSLS was totally different from the present situation. The applicant in this case never claimed to be driving trucks because of his political opinion. This is simply not a case of expecting some discretion in the practice of a trait such as homosexuality, where homosexuals in a particular country are accepted as a particular social group or political opinion, or religious belief.
Could we also say, and hopefully not being too overly sensitive to the choice of words involved in my friend’s submission, that the statement that it is common ground that the Tribunal did not apply S395 is something that we do dispute. As I think we have already submitted in some detail, the appellant’s case is that S395 is not speaking at this kind of case, really for the same reasons that Justice Flick pointed to in his judgment.
It is not in dispute that the Tribunal approached this case by asking what the review applicant reasonably could do, rather than what he would do, but it certainly is in dispute that there was a breach of S395. We say that what the Tribunal did was not inconsistent with S395.
With respect to Justice Flick’s judgment in the present case, that was not limited to “particular social group”. It was not limited to any one Convention head. That is really apparent, I think, from a holistic reading of what his Honour says from about paragraph 6 onwards, but perhaps especially the paragraphs that I have already taken the Court to earlier today, and paragraph 8. What his Honour is addressing is also behaviour which may lead to the imputation of a political opinion but which is not in fact the expression of a political opinion.
Next, it does not appear to be in dispute that Article 1A(2) imposes two cumulative conditions in the way that SZATV identified - the “owing to” condition and then the second condition involving the well-founded fear. Now, if a review applicant could avoid a real chance of persecution by reasonably altering his occupation and if the consequence of that is that he does not fall within the definition of “a refugee” then so be it and it is not material really whether the Tribunal sees that as going to the first limb or to the second limb, or indeed to both.
Once it is accepted that somebody who can reasonably avoid a well-founded fear by relocating or, we say, by altering his occupation, will fall outside of the definition, well, then, that is really the end of the argument and the Tribunal was entitled to decide as it did.
My friend also made a submission that there was an implicit finding by the Full Court that there was a narrower – a particular social group. We do not see the Full Court as having found at all that the Tribunal made a finding that truck drivers carrying building materials were a particular social group. Indeed, the tenor of paragraph 90 of the Full Court’s reasons
would seem to suggest that they considered that no finding was made on that issue by the Tribunal.
In relation to SZATV, SZATV is, with respect to our friends, inconsistent with the proposition that there must always be asked what the person would do. If there is something that the person could do by way of moving to a place where he or she would not have a well-founded fear of persecution, and it is reasonable, then that person will not fall within the definition of a refugee. There is nothing which requires first the question to be asked of whether the person would, in fact, make that move.
A relocation case cannot be answered by an applicant simply saying “no, I am not going to relocate” and then being accepted. S395 is something which was dealing with a particular kind of case, and it has to be understood in its own context and also in the context of SZATV, which demonstrates that one does not always need to ask what the person would do. Plainly, SZATV requires consideration of reasonableness. If your Honours please, those are the appellant’s submissions in reply.
FRENCH CJ: Yes, thank you, Mr Johnson. The Court reserves its decision. The Court will adjourn until 10 o’clock tomorrow morning.
AT 3.33 PM THE MATTER WAS ADJOURNED
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