Minister for Immigration and Border Protection v SZSCA & Anor

[2014] HCATrans 111

[2014] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S3 of 2014

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

SZSCA

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2014, AT 11.01 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 applicant.  (instructed by Australian Government Solicitor)

MR S.B. LLOYD, SC:   I appear with my learned friend, MR P.D. REYNOLDS, for the respondent.  (instructed by Fragomen).

FRENCH CJ:   Thank you, and there is a submitting appearance for the second respondent.  Yes Mr Johnson.

MR JOHNSON:   Yes, thank you, your Honours.  Your Honours, the special leave question was framed in terms of whether a person may be found not to meet the definition of a refugee where, firstly, that person could on return avoid persecutory harm by changing his or her occupation.

FRENCH CJ:   Stop driving trucks.

MR JOHNSON:   Indeed, stop driving trucks – if it would be reasonable for the person to do so, and doing so would not abrogate a trait protected by the Convention, and by that I mean would not amount to any kind of denial or moderation of political opinion, religion, homosexuality or expression of homosexuality in a case such as S395 et cetera.  Your Honours, here ‑ ‑ ‑

FRENCH CJ:   There is no suggestion that this is not a reasonable relocation notion.  It is rather an extension of that principle, is it?

MR JOHNSON:   This is a case where the applicant had already relocated to Kabul ‑ ‑ ‑

FRENCH CJ:   Yes, but I am just talking in terms of the underlying principle that informs the reasonable relocation criterion.  You are saying that this is in the same sort of general conceptual box?

MR JOHNSON:   Exactly, and if I could perhaps shortly go straight to that?  What we say is that the approach taken by the Tribunal here matches the text and the purpose of the Convention, and that in relation to the comparison with relocation we say that both the relocation principle and what the present applicant is contending for rely upon the same features of the text and purpose which led to the conclusion that the relocation principle applied, notwithstanding S395.

When I say to your Honours, led to the conclusion that the relocation principle applied, notwithstanding S395, your Honours will appreciate that there were in SZATV and SZFDV, cases before the Court in which the Court was asked to consider whether the literality of S395 might have prevented the application of the relocation principle, and if I could perhaps go to what we think is the heart of that, at least at a textual level.  I think that your Honours have SZATV; do your Honours have that judgment?

It is SZATV vMinister for Immigration and Citizenship 233 CLR 18, and I will go first to paragraph 19 and then I will briefly, after I have done that, take your Honours back to 15 and 16. If your Honours go to paragraph 19, this is in the joint judgment of their Honours Justices Gummow, Hayne and Crennan, and at this point their Honours are looking at the English decision of Januzi and they are explaining through their acceptance of Januzi how the relocation principle finds its place, and I will just read that quote, if I may:

“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:  ‑

I will come to that in a moment ‑

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.”

Now, it is that principle which is earlier described as the causative condition.  It is that principle which is at play here.  I indicated to your Honours I would briefly go back to 15 and 16, paragraphs 15 and 16, I will not fully read all of those because of their length, but your Honours will see that in paragraph 15, Article 1A(2) is quoted, and then in paragraph 16 of the joint judgment there is reference to Khawar where the Court pointed out that there were “two cumulative conditions” involved in that definition:

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 then addressed in the balance of the paragraph and that includes the requirement there be a “well‑founded fear of persecution”.  Now, here the person who can find safety upon return to his country of nationality, merely by altering his occupation, where the occupation is not for him the expression of some trait protected by the Convention but who does not do that, is really in the same sort of situation as someone who could find safety through relocation, for whom it would be reasonable to relocate and he chooses not to.

FRENCH CJ:   If you drive a truck, you are treated – this is on the found facts here ‑ this man is driving a truck, transporting construction and other materials, he is thereby treated by the Taliban as a supporter of the government and/or foreign aid agencies ‑ ‑ ‑

MR JOHNSON:   That is correct.

FRENCH CJ:   ‑ ‑ ‑ and as therefore having, I suppose, opinions or political opinions relevant to the Convention.  It is really in a different conceptual box, is it not, from reasonable relocation?  Here you are saying he has to abandon his occupation because of its linkage to a perception of him holding particular opinions.

MR JOHNSON:   Well, no.  We would say it is not in a different box, for these reasons.  Firstly, the person who relocates from one place to another commonly has to change not only his occupation ‑ ‑ ‑

FRENCH CJ:   His particular location is not associated with the holding of a characteristic, including opinion, which attracts Convention protection.

MR JOHNSON:   Yes, that is right.

FRENCH CJ:   Here, it is the occupation that is associated with the holding of particular opinions, a class of opinion protected by the Convention.

MR JOHNSON:   Well, no, with respect, what the applicant contends is that the main error made by the majority in the court below was to proceed on the basis that in every case, conduct that gives rise to an imputed political opinion ‑ ‑ ‑

FRENCH CJ:   Now, you are looking at paragraph 80, are you, at page 99?

MR JOHNSON:   Well, we are looking at paragraph ‑ ‑ ‑

FRENCH CJ:   I am sorry, I thought that 80 encapsulates the error which you attribute to the court below.

MR JOHNSON:   The ‑ sorry, your Honour, I just allowed myself to miss where I was ‑ ‑ ‑

FRENCH CJ:   “Acceptance of the Minister’s ‑ ‑ ‑

MR JOHNSON:   ‑ ‑ ‑ where I was at.

FRENCH CJ:   Yes.

MR JOHNSON:   It is probably in paragraph 64 and the bottom of page 95 where this is most evident.  If one goes to paragraph 64, the majority says that they:

do not accept the Minister’s submission that S395 is distinguishable because the expected changed behaviour described by the Tribunal did not involve “abnegation of an attribute” which exposed the respondent to persecution.  In the present case the threat had been made and the Taliban was proceeding on the basis that the respondent had the political opinion of being a supporter of foreign agencies.  In those circumstances the central importance in the submissions on behalf the Minister on the imputed nature of the political opinion was misplaced.

Then down the bottom of page 95, just picking up the last few lines, they say:

given the Tribunal’s specific finding at R[120] that those particular activities gave rise to the Refugees Convention’s protection of an imputed political opinion, there was no room to expect or require the respondent to change those activities –

Now, the error we say is that the majority appear to be proceeding upon the basis that as soon as some conduct leads to, or contributes to, the imputation, well then that conduct is protected, whereas the applicant says, no, the purpose of the Convention is to protect the traits which are recognised in the Convention reasons and that in a case such as this, where the activity is not, for the applicant, the expression of a political opinion or some other trait, there is room to expect that that can change, without the objects ‑ ‑ ‑

FRENCH CJ:   Would the same principle apply to a school teacher conducting a school for girls, regarded with disfavour by the Taliban as a supporter of policies which it opposed, an imputed support, would you say in that case that that falls into the same category, or how do you distinguish that case?

MR JOHNSON:   Well, there is a distinction.  One would need to look closely at that case because it may very well be that for the person concerned, participation in that kind of employment is an expression of some political opinion or other protected trait, but what we say, your Honour, is that again the situation is rather similar to the relocation cases.

Your Honours will recall that SZATV and SZFDV both went different ways.  The reasoning is the same but they both went different ways, and the reason for that was that in SZATV the person had been working as a journalist, expressing political opinions, and in SZATV it was found that to require that person to change his occupation would involve an abnegation of a Convention trait, whereas in SZFDV the opposite result ensued because that element of abnegation was not there.  That proposition is perhaps distilled ‑ I will take your Honours to it if your Honours wish ‑ in SZFDV at paragraph 15, read against paragraphs 29 and 101 to 102 of SZATV.  Would your Honours like me to go to those paragraphs?

FRENCH CJ:   We will just have a look at them for a moment.

BELL J:   Paragraph 15 of SZFDV you say?

MR JOHNSON:   Yes, paragraph 15 of SZFDV, particularly in the last few lines, refers to

abnegation of the attribute for which the appellant had come into conflict ‑

and then reading over in paragraph 16, the case is found to be “in contrast to SZATV”.  It makes more sense when one goes to SZATV because, if I could take your Honours to that, in paragraph 29 of the joint judgment in that case, 233 CLR 18, their Honours say:

In the present case, public expression of public opinion was of particular significance for the appellant by reason of his activities in Chernovtsy as a journalist ‑

and then picking up towards the end of the paragraph, reference is made to the contrast between the position of having “an anti‑government profile generally in Ukraine”, his ability to do other work ‑

not involving the expression to the public of his political opinions.

So the Tribunal was imagining these political opinions being not expressed in its relocation model.

BELL J:   One can see the factual differences between these two cases which led to the different results.

MR JOHNSON:   Yes.

BELL J:   Looking at the facts in this case, the well‑founded fear of persecution was based upon the fact that this respondent had been the subject, as the Tribunal found, of a clear threat to kill him in light of his imputed political opinion.  Now, that was a fact upon which the Tribunal proceeded, and as I understand it, the Tribunal did not make a finding that the respondent would not return to driving trucks were he to return to Kabul.

MR JOHNSON:   That is true ‑ ‑ ‑

BELL J:   Do those make ‑ ‑ ‑

MR JOHNSON:   ‑ ‑ ‑ but it did make a finding that he would be safe in Kabul and it would be reasonable to change his occupation so that he could stay there.

BELL J:   But was attention directed to whether or not it was open to him to change his employment?  I just thought factually this case may have some difficulties for developing the principle that you identify.

MR JOHNSON:   The Tribunal certainly considered whether factually it was open to him to change his employment, and that is at paragraph 130.

BELL J:   Did it come to a conclusion about whether he would?

MR JOHNSON:   It did.  In paragraph 130 ‑ ‑ ‑

MR LLOYD:   Well, it did not say he would.

MR JOHNSON:   I am sorry.  Yes, it did not say that he would change his ‑ sorry, it is accepted in these cases ‑ as the Full Court noted ‑ it is accepted in these cases the Tribunal did not find that the applicant would give up his, or not return to, employment as a truck driver but it did find that he could.

BELL J:   So the reasoning involved in acceptance that this respondent had a well‑founded fear of persecution arising from a threat to kill him, by reason of his imputed political opinion, and concluded that, nonetheless, his claim to engage Australia’s protection ought be rejected by reason that it was open to him to change his employment.

MR JOHNSON:   Well, not only it was open to him in the sense of being reasonable for him to do that, but also that the Tribunal did not accept that

working as a truck driver was what it described as a core aspect of the applicant’s identity or beliefs or life style which he should not be expected to modify or forego.  That is at the end of paragraph 30.

So, the Tribunal, in our respectful submission, was looking at whether or not giving up this employment would itself infringe the Convention protection and that brings me, if I may, to the purpose point that I promised to come back to.  The purpose of the Convention is to serve the protection of the various factors which were envisaged in the Convention reasons and the point is perhaps best made from S395 itself.  If I could ask your Honours ‑ ‑ ‑

FRENCH CJ:   You will need to encapsulate that briefly, Mr Johnson.  Your time is just about up.

MR JOHNSON:   I will, I will indeed.  If your Honours go to S395?  It is in ‑ ‑ ‑

FRENCH CJ:   It is under tab 2.

MR JOHNSON:   It is in your Honour’s ‑ tab 2, yes.

FRENCH CJ:   Yes.

MR JOHNSON:   If your Honours go to ‑ there are other paragraphs but this makes the point I think ‑ if your Honours go to paragraph 40, on page 489:

The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention –

that same idea, that focus upon the grounds is evident there in those two paragraphs and elsewhere in the judgment, as Justice Flick pointed out.

FRENCH CJ:   Yes.

MR JOHNSON:   So we say that what the Full Court has found to be necessary here goes beyond that purpose and it goes beyond the text.  If your Honours please.

FRENCH CJ:   Thank you.  Yes, Mr Lloyd.

MR LLOYD:   Can I start by saying, as we said, what the two opposing positions are, the respondent’s position and that of the majority of the court below and, we would say, the majority of this Court in S395?  It says that when a person has left their country in response to feared harm, directed to the person for one or more reasons stated in the Convention, the Tribunal should first ask what would happen to them on their return.  Now, that question may involve the need to ask, what would they do upon their return.  Sometimes it will not require that because if you fear harm because you are a ship deserter ‑ ‑ ‑

FRENCH CJ:   I can understand that distinction.

MR LLOYD:   Certainly.  So, on that point then, one says now, if the person says that they would continue to do something that puts that person at risk, there then will have to be a credibility assessment.  Do I really believe this person is going to do this thing?  Justice Flick gives an example in this judgment about people wearing collars.  Now, if in fact you wore a black shirt and white collars was going to put you at risk of death, you would say, well, why are you doing that?  You are not Catholic, you are not ‑ why?  So there would be a credibility stage where that comes in.

If, however, it is accepted that they would do it, for whatever reason, they are credible witnesses and it is accepted they would do it; then there is another stage of analysis which comes up which is, do I accept that they have a subjective fear of harm.  Maybe objectively, they do have a fear of harm but they do not think they have; they are not actually worried about it.  If, however, the person says, well, I would like to do this thing but I, in fact, will not do it because I would be killed, then there is another tier of analysis whereby the Tribunal would ask, well, is not doing that thing, does that amount to persecution?

Well, first of all, are you not doing it because you fear persecution and, therefore, you might ask, what are the risks of being found out?  That was a bit relevant in S395, but even if you will not ever be found out, there is still a further question which is, is not doing this thing itself a form of persecution?  Now, for some things, maybe in respect, for example, of homosexuals, it might be.  Having to suppress that aspect of your personality might itself constitute persecution.

Perhaps ‑ and I do not say this is the case ‑ perhaps not being a truck driver would not do that, but that is, we say, how correct analysis flows, and so in this way the issues that are of concern to the Minister are picked up by existing authority on a question of credibility of the statement that they will continue to do it, whether they have a subjective fear and whether being forced not to do it would itself constitute persecution.

On the other hand, the Minister’s approach says that the Tribunal can, in effect, have a shortcut.  They can say, is it reasonable to expect the person to modify their behaviour and be safe.  If the answer is you can modify your behaviour in a way that does not affect a Convention trait, then that is okay and you can be sent back home because you can, in effect, be expected to modify a Convention trait.  The Tribunal in this case pursued the course, which the Minister obviously seeks to defend.

There are a number of interrelated objections, we say, with this.  First, it begs the question as to what is a Convention trait.  The Convention does not talk about traits but reasons why persons left the country or are unwilling to return.  Secondly, the notion of “for reasons of” acknowledges that there can be causal links arising from all kinds of facts.  They can be multifarious.  They can be accurate or they can be wrong but imputed circumstances that lead to fearing persecution for a Convention reason.

Thirdly, the reasons that give rise to flight cannot readily be packaged into traits; maybe religion, maybe it can be, although even then there might be some dispute as to, you know, well, does your religion really require you to go out and doorknock?  I mean, maybe it does, maybe it does not; is that really a trait?  So on their test, this issue as to what is a trait ‑ and it becomes particularly problematic given that one of the matters is a member of a particular social group and particular social groups can be created in any number of ways, one of which is by reference to what people do.

Lawyers could be a particular social group or people who do certain things, and in this case it was not rejected that truck drivers who drive construction materials could be a particular social group.  Now, is that a trait if there was such a social group?  The problem is the Refugees Convention does not protect Convention traits.  It protects people who have fled for reasons of a particular kind, and so we say that the Minister’s analysis simply does not pick up on the way the Convention is framed, that there is nothing at all wrong with the analysis in S395.

In relation to what my friend said about the two cases SZATV and SZFDV, it is true that at paragraph 15, there is this reference to abnegation of attributes, but I note ‑ and I accept, of course, that I must ‑ that this Court chose to use those words in paragraph 15, but I do draw attention to the fact that they come from the terms of the grounds of appeal as set out in paragraph 12, so the language of abnegation of attributes is the language of the appellant and the Court is just saying, that is not made out, it is not necessarily some adoption that that is an important principle.

In relation to SZATV, we say that does not really help because ‑ I mean, if special were granted my client would have things to say about the relocation principle ‑ but even assuming that it is, as my friends say that it is, it involves a question of what ‑ you can only send someone back to a place where they would be safe.  You cannot send them back to a place

where they fear persecution because that would not be a proper place for relocation, and that necessarily still involves the question of asking, what would they do in that place and that might be, well, can they survive.  There are practical considerations for a place they have never been to before.

FRENCH CJ:   Well, this is all feeding into the causative element, is it not, owing to that fear, the well‑founded fear?

MR LLOYD:   It is, but what I was, in a sense, getting to is that in SZATV the Court in effect said, maybe not in these words, but you cannot tell someone who is a journalist to go back and not be a journalist, you should have – maybe he was going to be a journalist if he went back to a different place and be at risk in a different place for the same reasons, and that should have been considered.  So we say even the relocation principle as it is currently understood does not advance the Minister’s position.

So in the end we say that the existing law does not lead to any absurd results, the concerns, you know, that underlies their concern that somebody could be – truck drivers could, you know, just come in and maybe she should be expected to give up truck driving, there are ways under the existing law that can be considered by asking the correct questions, and we just say it should go back to the Tribunal and the correct questions should be asked and whatever happens, happens at that point.  May it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Johnson.

MR JOHNSON:   Your Honours, the need to ask what an applicant will do upon return, and to be driven by that consideration, is not something which is universal, and the relocation cases in this Court themselves demonstrate that.  Someone who is facing a relocation argument cannot simply overcome it by saying, well, I am not going to relocate.  If the person did so in circumstances where there was a proper finding that the person could avoid a well‑founded fear through relocation and it would reasonable to do so then that person would not be outside the country of origin because of a well‑founded fear, and the same applies here.

The position is perhaps well expressed by Justice Flick in his various paragraphs, but by way of emphasis ‑ and we have referred to a number of them ‑ but by way of emphasis could I just take your Honours to page 75 of the application book to his Honour’s, effectively, concluding paragraph in paragraph 15?  I will start about three lines down the bottom.  His Honour says:

It was simply unnecessary on the facts presented in S395 for their Honours to address the relevance of a claimant being required

to modify or change his behaviour in a manner separate from the manner in which he expressed his sexuality.  And it is no part of the protection afforded by that Convention to confer a licence or a protection upon persons to engage in forms of conduct divorced from the manner in which (for example) a person may practice or espouse his religious or political beliefs or opinions.

Now, with respect, we say that his Honour was right and that at least it is a question which deserves to be further ventilated in this Court.  It is a question which could impact obviously upon other cases, it is a question of general principle relating to the Convention, upon which, as we have pointed out in submissions, there appears to be an absence of specific authority.  We have approached the matter, essentially, by analogy with S395, and also by looking at the text of the Convention and its purpose.  In our submission, your Honours, the matter is deserving of special leave.

FRENCH CJ:   Thank you, Mr Johnson.  There will be a grant of special leave in this case.  One day?  I cannot imagine it going over.

MR JOHNSON:   I am sure that is right.  One day.

MR LLOYD:   Yes, and perhaps I should flag that we have flagged in the court below we were preserving our position in relation to the relocation principle, so that will be another issue that we will arise.

FRENCH CJ:   On notice of contention?

MR LLOYD:   Well, I am not sure if we strictly need a notice of contention, but it is certainly a point which has been well flagged to the other side.

FRENCH CJ:   All right.  Thank you.  Court will now adjourn to reconstitute.

AT 11.37 AM THE MATTER WAS CONCLUDED