CWF16 v Minister for Home Affairs & Anor

[2020] HCATrans 191

[2020] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B25 of 2020

B e t w e e n -

CWF16

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 2020, AT 9.29 AM

Copyright in the High Court of Australia

MR S.J. KEIM, SC:   May it please your Honours, I appear with my learned junior, MR D.C. FAHL, for the applicant.  (instructed by Arshad and Chand Lawyers)

MR B. McGLADE:   May it please the Court, I appear for the first respondent.  (instructed by Minter Ellison)

NETTLE J:   Yes, Mr Keim.

MR KEIM:   Thank you, your Honour.  It is submitted that special leave ought to be granted because the issues raised by the proposed grounds of appeal are both of general importance and specific or personal importance to the applicant, of general importance because it relates to the correct approach to be taken to the important statutory task in assessing whether complementary protection is to be extended to non‑citizen provisions that are being applied in very many applications for safe haven visas.

It is of specific importance because the consequence to the applicant is that he would be deprived of a determination of his protection visa application, we say properly according to law because the reasonableness of his being required to go to Kabul has not been considered by the Authority.

The broad issue is the correct construction and application of sections 36(2)(aa) and (2B)(a) of the Migration Act in their statutory and broader context, the construction adopted by the Immigration Assessment Authority in paragraphs 23 and 34, in the Federal Circuit Court in paragraph 26 of its reasons and endorsed by the Federal Court which said the questions of reasonableness or even relocation do not arise in the case of any place to which an applicant will return or will be returned.

GORDON J:   Mr Keim, can I ask this question?

MR KEIM:   Yes, your Honour.

GORDON J:   Is it not the question that here on the facts your client left Kabul…..be returned to Kabul?

MR KEIM:   Yes, your Honour.

GORDON J:   Why, either on your approach or on the approach contended for by the Minister, is the answer not the same – that is, it is not a question of relocation, it is a question of the place to which he returned, that is, namely Kabul?

MR KEIM:   Your Honour, the answer to your question is inherent in the concept of reasonable relocation.

GORDON J:   It is not relocation; it is a question of return.

MR KEIM:   We say that Kabul is a relocation because the place to which he would return, if it were not for the Convention “risk of harm”, is his true home which is at Ghazni.  He travelled to Kabul as part of the process of fleeing.  The fact that he lived in Kabul for a period of time and the fact that his parents may or may not be in Kabul are factors which would have been relevant to the reasonableness of him being refused a visa and expected to return to and live in Kabul. 

The purpose of the Convention is to give a person safe refuge from Convention harm, which is the harm which was found to be occurring in Ghazni.  So the applicant, and any person in his situation, would return to Ghazni were it not for the fact that he would be at significant risk of harm in that place, which is what the Authority found. 

So, in the case of any such applicant, the true question, we say, is what is the place to which the person would return, absent the continuing risk of significant harm?  If the person – and the answer to that, in this case, is clearly Ghazni.  He will only be returned – so to Kabul, and he will only - and that is non‑voluntary on his part and he will only be in Kabul because he cannot return safely to Ghazni. 

That is where the question of reasonableness comes from.  Is it reasonable to refuse him the safe haven in Australia and expect him to go to a place which is not the place to which he would go to, were it not for the harm which is the subject of the Convention?

NETTLE J:   But why would it be concluded otherwise than that it is reasonable, because he went there, and on the found facts, lived there for a period of time, no longer the subject of the threat?

MR KEIM:   Well, we do not know the answer to that question, your Honour, because it was expressly not considered by the Authority and it is a matter for the Authority to consider.  There were a number of submissions made on behalf of the applicant to the Authority in answer – sorry, addressing your Honour’s question - sorry your Honour?

GORDON J:   Mr Keim – could you just tell me what was not considered?

MR KEIM:   What was not considered?

GORDON J:   Yes.

MR KEIM:   Yes, the risk of general violence.  In our written submissions we have referred to the passage in the application book where these matters were considered.

GORDON J:   You mean just the general violence in Kabul?

MR KEIM:   Sorry?

GORDON J:   In Kabul?

MR KEIM:   Yes, yes.  So, the sorts of matters which are canvassed in those submissions are the risk of general violence in Kabul, which is ongoing, and that was considered by Justice Wheelahan as a factor for it not to be reasonable in one of the cases which we have cited.  The fact that he does not have any connections in Kabul except the fact that his parents may still be there - but they are not people from Kabul, they are people from Ghazni, the difficulties in obtaining work and some other matters, to my recollection, were canvassed. 

But there were submissions made addressing that precise point and what the Authority said was we do not have to consider these things because this is not relocation.  So, it was not considered at the Authority level.  It was not considered at the Federal Circuit Court level and it was not considered at the Federal Court level - I say properly in the case of both those courts because it is not the role of the courts to address the question of fact.  It is the role of the fact finder, the Authority, to consider those questions of fact.

GORDON J:   Did not the finder of fact deal with that at paragraph 35?

MR KEIM:   Can you tell me the page of the application book, please, your Honour?

GORDON J:   Page 273, I think.  Page 14 - I apologise.

MR KEIM:   I have it, your Honour, thank you.

GORDON J:   So, in 35 they deal with generalised violence in Kabul, then in 36 they find that the risk of mass casualty - assesses that risk.

MR KEIM:   Your Honour, the Tribunal there assessing the section 36(2)(aa) questions, that is, the Tribunal is assessing the question as to whether the applicant is at significant risk of reasonable harm.  It is a different question.  As we see in the cases such as whether it is reasonable for a person not to work as a truck driver any more and, therefore, avoid the risks of dangers on the roads outside Kabul, it is expressed in the authorities as questions that are personal to the applicant – questions such as employment; questions such as contacts in the city; questions such as generalised violence which may not come within the Convention harm.

So, the answer to your Honour Justice Gordon’s question is that the Tribunal – the Authority – is addressing a different question at that point.  The passages where the Tribunal says it does not have to accept or does not have to consider these matters are at paragraph 23 on page 12 and paragraph 34 on page 14.  Can I just take your Honours to paragraph 34 because it is just above the paragraph that we were looking:

While the applicant’s representative has made submissions about his situation in Kabul on the basis that he would be relocating there, given that the applicant resided in Kabul with his parents for two or three months prior to his departure from Afghanistan, and given that this was the last known location of his parents, I have assessed Kabul as the area of Afghanistan to which the applicant would return.

So, the Authority is using that basis as a basis for not considering the question of reasonableness in relocating there.  If I go to the other paragraph, your Honour, which is paragraph 23 – which is back a couple of pages – the Authority makes the finding in the first couple of lines with regard to the significant risk of harm in Ghazni, and then after footnote 20, it says:

However, given that the applicant resided in Kabul with his parents for two or three months prior to his departure from Afghanistan . . . I have assessed Kabul as the area of Afghanistan to which the applicant would return. 

The Authority says it finds that there is no real risk of persecution for the purposes.  The question of reasonableness is not address by the Authority in any of those assessments, either the ones I have taken your Honour to or the ones in paragraph 35 to which your Honour directed my attention.

NETTLE J:   Mr Keim, that second proposition in paragraph 23 builds on the fact that he had lived there for some time with his parents and, therefore, it was inferred it was likely that he would go back there.

MR KEIM:   Yes.

NETTLE J:   It really contradicts your argument because it holds to the contrary that his residence in Kabul was merely running away.  It is an acknowledgment or an acceptance that he has changed his residence and his permanent residence has become Kabul, is it not?

MR KEIM:   The answer to your Honour’s question is that it is neither one way or the other, it is simply a statement of fact.  What we would rely upon is the fact that two or three months is a short period of time.  The case that the applicant prosecuted before the Authority was that the decision to further flee was made as a result of some events in Kabul, but the true question is, we say - the true construction of the legislation, we say, if it is to be expressed in terms of “to which the person would return”, it must be qualified, “to which the person would return if the Convention harm were not still operative” and that takes one to Ghazni.

So the question then becomes - and, for example, the authorities are quite clear - the Federal Court in CSO15 is quite clear in this regard.  One cannot just pick a place that is safe, in terms of the Convention, and say, right, you can go back there.  Whatever place is said to provide safety must be considered in terms of the reasonableness of having to go to that place, to be in that place.  We see in cases like SZATV, the other cases that we have referred the Court to, for example in the case of the driving outside Kabul, the person was living in Kabul.

Now, I know that this is looking at the refugee cases, it is slightly earlier than this legislation, but it was saying it is wrong to say that because you are living in Kabul then the Refugee Convention does not apply to you.  What the Court said in that case was you have to consider the reasonableness of living there, and in that case it was the fact that the person was not able to carry out their job of a truck driver because of the danger outside. 

Now, that is not what precisely arises here.  It is not a two gay men living in Bangladesh case, it is not the journalist in the Ukraine case, but it is a case - and at paragraph 42 of CSO15 the Full Court of the Federal Court says that you have to consider those questions of reasonableness in any place to which the person will return.  The fact that a person will return to a place, whether they have lived there for a short period of time or a long period of time, does not affect the requirement that the reasonableness of being required to go back there, as opposed to being granted a visa and given safe haven in Australia, must be considered by the Authority in every case.  The Federal Court said, at paragraph 42:

That is because under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place.  At least one location within a country of nationality must be identified for this task to be undertaken . . . once a decision‑maker has identified a region or place to which it is likely a person will return, an assessment of the risks a person might face on return to that place or region may, in some factual circumstances, require consideration of what is reasonable and practicable in terms of how that person will live and work in that place. Separately, and distinctly, because it is sourced in a different limb of Art 1A . . . this assessment will invariably be required if the region or place is “new” for the person, and internal relocation (or “internal protection”) principles apply. If it is not a “new” area, then decision-makers will need to remain alive to the factual issues raised in cases such as SZSCA.

What we say with regard to that is that it is applicable to the present circumstances but a better way of addressing that is to phrase it in terms of the place to the person – the place to which the person would return absent the Convention risk of harm. 

We say that that is the correct construction because it implements international law.  It is consistent with the way in which the Refugee Convention has always been applied and the extrinsic material, which we have referred the Court to, stated that the intention of those amendments to section 36 to include those two subsections was to implement the international law with regard to complementary protection.  We say that that cannot be done unless on every occasion there is a consideration of the reasonableness of what it is the person is expected to suffer or endure or put up with or just experience in going back to the country when they are not able to go back to the place where the harm occurred.

NETTLE J:   All right.  I think you say it must follow in every case.  I follow the force of the argument but then what was it that was here submitted to the decision‑maker that made it unreasonable for this man to relocate to Kabul?

MR KEIM:   We have addressed that in our written outline, your Honour.  I am not sure that I can refer to it or expand on what I said earlier but it is the case of the general dangers, the lack of contact in that area and, of course, it was submitted that there were no family connections which could assist the applicant living in a big, strange and dangerous city, which Kabul obviously is.

GORDON J:   Is that not answered by paragraph 27 on page 12?  I know it is a different context but it seems as though those sort of considerations were rejected by the decision‑maker.

MR KEIM:   Well, we say no, your Honour, because they were rejected in terms of the significant harm, the real likelihood of significant harm.  They were not considered in terms of the reasonableness and practicality of the applicant being required to locate to that place.  They are quite different considerations, in our submission.  To consider it in one context is not to consider it in another context. 

If this matter is not considered and addressed then that conflation of those two issues will continue to be carried out both by the Authority and by the courts below which considered the decisions of the Authority.  So, in our submission, it is a completely wrong approach to the true construction of the two sections and will lead to injustice in many, many cases, in our submission, if that consideration of reasonable relocation is not carried out but merely there is a question as to whether there is a significant – a real risk of significant harm in the place.  They are quite distinct questions, in our submission.  I am over time, your Honours.

NETTLE J:   Thank you very much, Mr Keim.  Yes, Mr McGlade.

MR McGLADE:   Your Honours, the Minister contends that the application before this Court should be dismissed.  It should be dismissed because it is not attended to with sufficient prospects of success to warrant a grant of special leave.  That is because, in the Minister’s submission, the statutory language in the complementary protection provisions in the Act is clear and unambiguous and does not support the construction advanced by the applicant today.

Your Honours, in this application, the applicant continues to seek to advance the notion that section 36(2)(aa) and (2B) should be read together.  The problem with that, your Honours, is that the general test as to when the complementary protection criteria are satisfied is embodied in section 36(2)(aa) of the Act and, if that test is not met, it is not even necessary to look at subsection (2B).

Accordingly, your Honours, it would only be if the statutory language used by section 36(2)(aa) was unclear or ambiguous that some kind of assistance in terms of construing that provision could be derived from subsection (2B) of the Act.  However, in my submission, there is no want of clarity or ambiguity in section 36(2)(aa) of the Act to warrant that.

If your Honours are looking at the legislation, you will see that section 36(2)(aa) directs the decision‑maker to consider whether a non‑citizen faces a real chance of harm:

as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country -

There is, in my submission, no ambiguity in that.  The statutory language is clear.  The reason I say that, your Honours, is because logically the only way to determine whether a person faces a real chance of harm as a necessary and foreseeable consequence of being removed to their country of origin is to examine what the person is likely going to do and the place or places they are likely going to go if they were returned to their country of origin.

If, after considering that issue, a decision-maker determines that having regard to the place or places the non-citizen is likely going to go, that the non-citizen does not face a real chance of harm then there is no need to even look at section 36(2B).

Your Honours, that construction of the complementary protection provisions, that I have just purported to explain, has been accepted by the Full Court of the Federal Court in CSO15 and also in a case called CAR15.  My learned friend took your Honours to paragraph 42 of CSO 15 and all their Honours express in that particular paragraph is that relocation may become relevant in certain circumstances. 

If you read down to paragraphs 46 and 47 of that decision, it is, in my submission, quite clear that their Honours insist on the complementary protection provisions having a two‑step test – that is, is section 36(2A) satisfied?  If so, look at (2B).  So, your Honours, ultimately the Minister’s submission is that section 36(2A) is clear and unambiguous and there is no need to resort to subsection (2B).  

Your Honours, to the extent the applicant contends to the contrary, there are a number of issues that run through the applicant’s argument.  The first issue, your Honours, is that, in my submission, the case advanced by the applicant does not, at least in any clear way, purport to articulate what the ambiguity in section 36(2)(aa) of the Act is.  The applicant’s case does not, in my submission, directly deal with that. 

The second issue, your Honours, with the applicant’s case is the applicant is unable, in my submission, to proffer a sensibly workable test which explains how section 36(2)(aa) operates in a situation like the one at present that does not produce anomalous results. 

Your Honours, in the applicant’s primary outline of submissions, a test was proffered which produced anomalous outcomes and in the applicant’s reply submissions – and my learned friends I will address today – a different test was proffered as how the complementary protection provisions work in the case like the one at hand.  The newest articulation of the test, they say, is that the decision‑maker must ask himself or herself where the citizen would likely return to if no significant risk of harm existed and the person was making a voluntary decision to return to their country of origin.

Your Honours, in my submission, that is a problematic formulation for two reasons.  The first reason is, it is difficult to see how that sits with the language – the statutory language of section 36(2)(aa) of the Act which requires focus on the locations that the person will, in fact, likely go on their return to their country of origin.

The second issue with the presently articulated test, your Honours, is that applying that test would give rise to anomalies.  For example, instead of asking a person where they would likely go on their return to their country of origin, the applicant says that the decision‑maker should ask and answer an entirely hypothetical question, that is, where would the non‑citizen go in their country of origin if safety was not an issue. 

In my submission, many answers to that question would be divorced from reality.  For example, it is not unforeseeable that many non‑citizens would go to locations which best achieved or advanced their social, family or economic interests if considerations of safety were completely irrelevant.  That may be the case even if the location was somewhere where the non‑citizen had never lived or was otherwise unfamiliar with. 

Your Honours, in my submission, the test that the applicant advances is a test that would be even wider in scope than the protection offered under the Refugees Convention, not even as enacted into the Migration Act, under the Convention itself.  I will just try and explain that submission, your Honours. 

As your Honours know, the reason relocation is a concept under the Refugees Convention is one of construction and that arises, your Honours, because under the Convention a person has to be outside their country owing to a well‑founded fear of persecution and that has been interpreted as having the consequence that if a non‑citizen fails to seek to internally relocate within their country to avoid a risk of harm but rather just flees and seeks asylum then they are not, as a matter of causation, outside their country owing to a well‑founded fear of persecution.  They are outside their country as a matter of causation because they have refused or failed to internally relocate in order to avoid the risk of harm. 

Your Honours, even under that test, the courts have equated the concept of having internally relocated with the notion of having sought to live in another place within a non‑citizen’s own country and I have referenced in my written outline at footnote 6, two High Court decisions of SZSCA and SZATV where the concept of relocation is equated with the concept of having sought to live in a different area. 

Now, the reason I raise that, your Honours, is because - and this was something your Honours alluded my learned friend to, in this case, the applicant accepted that he and his family had moved to Kabul and were living and residing there, such for Refugees Convention purposes they had already internally relocated.  Consequently, if this were a Refugees Convention analysis, the question would be whether it would be reasonable for the applicant to relocate from Kabul. 

Now, your Honours, I note that my learned friend did suggest that the purported relocation was only a fleeting one.  Your Honours, in my submission, that is not made out on the evidence, on the face of the IAA’s reasons.  In paragraph 3, the Authority refers to the applicant having – and this is in the final sentence, page 265 of the court book:

He found that in any event the applicant would not face harm in Kabul –

This is the delegate’s findings, sorry, your Honour, which is being summarised:

where he had lived with his parents for some time prior to his departure. 

If your Honours go to paragraph 8 where the applicant’s claims are summarised, in the fourth bullet point, the first sentence refers to:

his family moved to Kabul in 2012.

If your Honours go to paragraph 19, the second sentence of that:

The applicant claims that he lived in Kabul with his parents for two or three months before he left Afghanistan –

and in paragraph 23, the Authority makes a finding that the applicant:

resided in Kabul with his parents for two or three months prior to his departure –

Now, your Honours, in terms of the submission that the move to Kabul was fleeting, it must be borne in mind that the applicant did not suggest that he left Kabul for reasons other than to avoid harm.  So the applicant did not suggest that he left Kabul because the situation there was unreasonable.  He said that “I left Kabul because of the risk of harm I faced there”.

Now, the Authority did not accept that.  So viewed through that prism, your Honours, the applicant’s case, viewed in light of the Authority’s findings, is that the applicant had in fact moved to Kabul, where he lived, which was in fact a safe haven, for want of a better term, and the applicant there, by choice, I guess, for want of a better word as well, moved to Australia.

Your Honours, the final issue with the applicant’s argument, in my submission, is it centred around the proposition that no person would ever return to an area of their country of origin where there was a risk of harm there.  The mistake in that, your Honours, is that that argument is based entirely on assumption, that is an assumption that a non‑citizen would not seek to return to an area of risk to be with family or friends, or because of past connections or economic prosperity. 

That is an assumption, in my submission, your Honours, which is not always consistent with reality, particularly when it is borne in mind that the real risk test, which the complementary protection provisions apply to, has a low threshold standard.  This Court in Chan said that risks under 50 per cent could meet the real risk test, so, your Honours, I guess the upshot of what I am saying is that to say that no person would ever go back to a place where there was a real risk is not an assumption which is properly founded.  Those are my submissions, unless your Honours have any questions.

NETTLE J:   Thank you very much, Mr McGlade.  Mr Keim, is there any reply?

MR KEIM:   Yes, your Honour.  There were three things that I wanted to draw your Honours’ attention to, some of them arising out of our earlier discussion.  Justice Logan, for another purpose, sets out part of the submission addressing the unreasonableness of going to Kabul.  In paragraph 13 of his Honour’s reasons at page 53 – and I would refer the Court to that, it is at the bottom of the page, his Honour says: 

Materially, the submission stated –

and there are references to the established family network lacking that and also continuing issues with regard to general safety in Kabul, and some specific issues going to the family’s situation of danger being transferred from Ghazni to Kabul as well because they were targeted in Ghazni.  So that is a major extract from those submissions that your Honour Justice Gordon was asking me about, and I have been able to find that in the record.

The second point that I just wanted to take the Court to is at page 42, in the decision of the Federal Circuit Court, and that is where his Honour Judge Egan, at paragraph 26 on page 42, really sets out the proposition, which we say is wrong and which will be treated as being correct if the Court does not grant special leave in this matter.

Just in response to our learned friend’s submissions with regard to CSO, I took the Court to paragraph 42 earlier.  I just indicate that

paragraphs 45 to 48, the paragraphs where the court deals with – essentially it is striking down a submission of the Minister on that occasion and the thrust that comes out of it is you just cannot pick a place that is safe without considering whether it is reasonable for the person to go to and live in that place.  That, of course, is not a new proposition.  That comes from the earlier cases with regard to the Refugee Convention generally.

NETTLE J:   Mr Keim, do you have any response to Mr McGlade’s submission regarding what the effect would have been under the Convention and that the scope of protection for which you argue exceeds even the Convention?

MR KEIM:   No, we say that the principles from the cases which we have referred to, going back to Randhawa and back to the English case of Januzi, which is quoted in SZATV, the principles for which we argue here are exactly the principles that were developed, and it relates to the causal connection.  The way in which the principles were developed – and the United Nations Handbook referred to and Randhawa does this – it starts with the proposition that you get asylum if you are out of the country – and this is the way the Convention is phrased – because of, in that case, a well‑founded fear of persecution.

The reasonable relocation doctrine was developed to fit out or to fill out that causal connection and the way in which the authorities settled on it, and this is international authorities as well as Australian authorities, was that the causal connection is not broken by the fact that there is some safe place elsewhere in the country, any safe place elsewhere in the country.  The causal connection is only broken if there is a safe place elsewhere in the country and it is reasonable to expect you to live there.

That is how it was developed in the context of the Convention.  That is exactly how it is incorporated into section 36(2)(aa) and (2B)(a).  The other thing we would say is that it is such a strong proposition because of the Ukrainian journalist case and the gay man in Bangladesh case because you just do not look at whether it is reasonable to live there; you actually look at whether it is reasonable to constrain yourself to avoid danger there.  The roads on the outside of Kabul are a really good example of how strong the proposition is.  We do not have to go there.  It is just about living in Kabul that we say has not been considered as to whether it is reasonable or not.

NETTLE J:   Thank you very much.

MR KEIM:   Thank you, your Honour.

NETTLE J:   In this matter the Court is not persuaded that the judgment of the Federal Court is attended by sufficient doubt to warrant the grant of special leave.  The application for special leave is dismissed with costs.

MR KEIM:   I cannot say anything against that, your Honour.

NETTLE J:   Thank you.  The application is dismissed with costs.  Thank you, gentlemen.

AT 10.11 AM THE MATTER WAS CONCLUDED