Minister for Immigration and Border Protection v SZSCA & Anor

[2014] HCATrans 219

[2014] HCATrans 219

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 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 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) 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 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.

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