SZFDV & SZATV v Minister for Immigration & Citizenship & Anor
[2007] HCATrans 205
•18 May 2007
[2007] HCATrans 205
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S61 of 2007
B e t w e e n -
SZFDV
Appellant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Office of the Registry
Sydney No S62 of 2007
B e t w e e n -
SZATV
Appellant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 18 MAY 2007, AT 10.17 AM
Copyright in the High Court of Australia
__________________
MR J.T. GLEESON, SC: May it please the Court, I appear with MR N.J. OWENS for the appellants. (instructed by Corrs Chambers Westgarth)
MR S.J. GAGELER, SC: If the Court pleases, in each matter I appear with MR P.S. BRAHAM and MR T. REILLY for the first respondents. (instructed by Australian Government Solicitor and DLA Phillips Fox)
GUMMOW J: There is a submitting appearance from the second respondent, the Tribunal. Is the title of your client correct? Should it not be Minister for Immigration and Citizenship?
MR GAGELER: Yes. Your Honour is correct.
GUMMOW J: Do you seek to change that?
MR GAGELER: Yes.
GUMMOW J: Is that opposed?
MR GLEESON: No, your Honour.
GUMMOW J: Very well, that order is made. The title of the first respondent should be shown as “Minister for Immigration and Citizenship”. Yes, Mr Gleeson.
MR GLEESON: Your Honours, our main point today, if I can identify it immediately, is that the Tribunal ‑ ‑ ‑
GUMMOW J: Only one?
MR GLEESON: One main point with a few little arguments.
KIRBY J: Lots of little points.
GUMMOW J: Yes.
MR GLEESON: The main point is that the Tribunal in each matter fell into jurisdictional error in this sense. It determined whether a subjective fear of persecution for a Convention reason was well‑founded by applying an impermissible rule. The rule had two steps: the first step, could the applicant relocate to another part of the country of origin to avoid persecution; the second step, was it reasonable to expect the applicant to do so? We submit that that rule displayed a legally erroneous view of the concept of well‑founded fear.
Your Honours, there are five topics I propose to deal with, if I might. The first is to look at one of the sets of reasons – that is in the Ukrainian matter – to see how the rule is applied in the reasoning process. Our submission will be that the rule is applied at the stage of well‑founded fear and that it is a shortcut which prevents the statutory question being answered.
KIRBY J: Has any other country followed the view that was adopted by this Court in relation to the seeking of protection and that that means seeking protection from the diplomatic services of the country overseas?
MR GLEESON: I believe the answer is no, your Honour. It has not been followed in England in the recent case of Januzi which we will come to. It has not been reconsidered by the Supreme Court in Canada or the Court of Appeal in New Zealand. However, to the extent they looked at the question prior to your Honours’ decision, they took the opposite view of the second limb. I want to come to those cases, if I can identify them.
The first question is structure. How does the rule come into the reasons. The second question is to look at Randhawa for this purpose, that we will submit that the internal relocation rule came into Australian law essentially through the Full Court in Randhawa primarily on a construction of the second limb that your Honour Justice Kirby just raised with me of the definition of “refugee”, which this Court has rejected in S152 and, accordingly, the essential basis of Randhawa does not survive this Court’s decision in S152.
GUMMOW J: That is not the end of the matter, though, is it?
MR GLEESON: It is not, your Honour, no.
GUMMOW J: You can find another footing in the text, can you not?
MR GLEESON: Exactly, so we have to deal with that.
GUMMOW J: Yes.
MR GLEESON: The third matter we wish to deal with is this Court’s decision in S395 and we would submit that the rule is inconsistent with the Court’s decision in that case because the rule prevents the Tribunal from finding how the applicant is likely to live on return to the place of origin.
GUMMOW J: Do you mean country of origin?
MR GLEESON: Country of origin, your Honour, yes, and assessing the chance of persecution on that factual basis. The rule prevents that inquiry being undertaken and it is one this Court required in S395. The fourth topic is to look at the overseas authorities and we submit that, with respect to them, none of those cases provide a basis for the rule which is satisfactory for this Court to adopt.
The final topic concerns the additional ground which, if I may refer to my client, the Ukrainian applicant has, the additional ground being that the Tribunal made, it seems, an assumption that he was required not only to relocate but to abandon the profession through which he expressed the political opinion which targeted him for persecution.
CALLINAN J: Was there a further assumption that he would be able to find work as a construction worker? Was there a basis for that?
MR GLEESON: The only basis for that appears to have been he worked in Australia as a construction worker and therefore had the manual facility. One of the difficulties with the Tribunal’s reasons in that case was that even if one is to apply the rule, the Tribunal never identified where the other place was in the Ukraine that he was meant to go and therefore what work there was there and how he would otherwise behave. So I want to deal with those matters fifthly by way of his special circumstances.
KIRBY J: There are a lot of thoughts bundled up in that. As far as I know, India does not have an internal passport for the billion people there, but it is probable that the Ukraine does. Whether you need permission to move from one area to another is – I mean, I would think that probably existed in the communist days. Whether it still does I do not know.
MR GLEESON: On the findings in that matter it is approached from the view that there are residence requirements in the Ukraine. You cannot live somewhere else without registering yourself. Therefore, you can be found by anyone who wishes to target you from another place in the country and, as we read the Tribunal’s reasons, they are in effect that it would be dangerous for him to work as a journalist anywhere in the country because he can be found but, if he were not to do that and, for instance, try to be a construction worker, then the regional authorities who were persecuting him might leave him alone.
KIRBY J: We will come to that in due course because it is the fourth or fifth point, but I think you might be being a little unfair to the Tribunal, as Mr Gageler points out in his submission, because it was more of a throwaway line that he had to come out here and he got a job out here in the construction industry and if he can do it out here, he can do it over there. That is not a completely objectionable way of thinking.
MR GLEESON: Your Honour, the critical basis of that fifth point will be that he was targeted for persecution because of his expression of political opinion through his chosen profession of journalism. The question was whether the Tribunal assumed that he would abandon that profession, together with relocation, as a means of avoiding continued persecution. If that assumption was made, that is what we seek to focus primarily on.
Your Honours, if that is a convenient order could I go to SZATV to see how the principle applies in the reasoning. On page 3 we see in paragraph 3 that this applicant had worked for 10 years as a journalist and lived for 32 years in the single town of Chernovtsi the Ukraine and in paragraph 4 the claim of ‑ ‑ ‑
GUMMOW J: That is a long way from Kiev.
MR GLEESON: We will try to get a map, your Honour, to show the Court.
GUMMOW J: It used to be called Czernowitz and before 1918 it was part of the Austro-Hungarian empire. It only became Ukrainian, as I understand it, after 1945.
MR GLEESON: Yes.
KIRBY J: We are fortunate to have the presiding Judge who knows all about these things. I do not have any idea of where it is. Is there a map?
MR GLEESON: Your Honours, we have only brought one. We can make further photocopies.
KIRBY J: Just point with your finger on where Kiev is and where Czernowitz is.
MR GLEESON: Kiev is there; Chernivtsi is there.
KIRBY J: So the one is in the centre and to the extreme east of the country; the other is to the south and on the border of – I assume that is Poland, is it?
MR GLEESON: It is Romania, your Honour.
GUMMOW J: It is Romania after 1918, I think.
MR GLEESON: Yes, your Honour. In paragraph 4 he claimed he was persecuted for political opinions. If your Honours look at paragraphs 11 through to 15, the Tribunal identified that the first limb of the definition of “refugee” had four elements to it.
The well‑founded fear element, the objective element, is paragraph 15. The Tribunal then said in paragraph 16, “In addition, an applicant must” satisfy the second limb. Then the Tribunal set out, essentially, the applicant’s written case which was between paragraphs 18 through to 34 and then the evidence at the hearing between paragraphs 35 through to 57. I will need to come back and notice one or two aspects of that later.
The Tribunal then moved to the country information at paragraph 58 through to about paragraph 61 and then commenced certain findings. Paragraph 66 is important because these were the key claims of the applicant that were accepted and they were claims which indicated that in the past he had been subject to persecution for reasons of his political opinion expressed through his journalism, persecution involving agents of the State, including, as we see at the bottom of page 20 of the book, that he had a death threat from the deputy governor of the region.
At the top of the next page he was required to modify his behaviour and leave his employment as a journalist to avoid “trouble”. He faced death threats, police searches, seizure of records ‑ ‑ ‑
GUMMOW J: All this is before the so-called Orange Revolution, is it not, well before it?
MR GLEESON: These events, your Honour, are in 2000.
GUMMOW J: In 2000.
MR GLEESON: Yes, your Honour. So that is the acceptance of his evidence. Paragraph 67 is a finding in relation to the country information, that:
journalists have been murdered and a number have suffered serious injuries in assaults, all of which may have been politically motivated.
The overall finding, then, is at paragraph 70 that it was accepted that:
the Applicant has been subjected to a systematic campaign of harassment with physical mistreatment which in my view does amount to persecution and for the Convention reason of anti government political views imputed to the Applicant.
To that point, applying what some of your Honours said in S395, when one looks at what happened to this applicant in the past and when one looks at what is likely to happen by reason of what has occurred to other journalists, the applicant had put forward at least a case for refugee status under the first limb, that is, that at the date of the decision he had a fear of persecution for Convention reasons that was well‑founded.
The Tribunal then in paragraph 71 moves to the future and makes a finding between 72 and 77 rejecting one of the applicant’s claims that we do not challenge and makes the finding in 78 about registration that I mentioned to Justice Kirby and then the rule emerges at 79 to 81. What the Tribunal does is to move away from what this applicant will actually do if sent home, where he will live, how he will behave, to an assessment of possibilities. The Tribunal says in paragraph 79 that:
internal relocation is a realistic option –
It says over the page:
While he may not be able to work as a journalist elsewhere in Ukraine I believe that he may be able to obtain work in the construction industry –
In paragraph 80 it say the “chances” of him “being pursued” by the forces in his region were “remote” because he had written the article some year before, and, we stress, the “threatening telephone calls” were there “to frighten or intimate [him] into leaving journalism”. The implicit assumption seems to be that provided he is not practising journalism and he is away from the home region he may not face real threats. That is confirmed in the next sentence, “the intention was only ever to frighten” him. Then in paragraph 81:
In summary I find that the Applicant has suffered persecution in the past for the Convention reason of his political opinions. However, I am satisfied that, because the persecution he has suffered is localised to the Chernovtsky region, it is reasonable for the Applicant to relocate elsewhere in Ukraine.
It does not say where:
Accordingly, I am not satisfied that his fears of persecution upon his return to Ukraine are well founded.
We would make the following observations about that structural reasoning.
KIRBY J: Is there any country information that showed that the Ukraine is a homogeneous sort of a nation? One would, I think, infer that, whereas India is a most disharmonious nation. I mean, it is a nation of states that were never united until 1947.
GUMMOW J: That is the point about this, is it not, western Ukraine Catholic, eastern Ukraine Orthodox, enormous tensions. Kuchma regime referred to here based in the east of the country. It is all rather naïve, but we do not have country information to help us or, more accurately, the Tribunal did not have country information.
MR GLEESON: Not addressing that important question, your Honour. It seemed more focused on ‑ ‑ ‑
GUMMOW J: We are talking about relocation in this country. It assumes homogeneity which may not exist.
MR GLEESON: The country information was more targeted to, are journalists threatened across the whole country and that seemed to say they were, but it did not answer the question your Honour posed.
CALLINAN J: That was the point I was going to raise with you. The Tribunal seems to have held, in effect, that the threat was a local one, in the city, a regional threat, but yet the finding at paragraph 67 on page 21 relating to the danger to journalists, which I think you have just referred to, does not distinguish between any parts. It seems to suggest that journalists are at risk throughout the country:
I accept that several journalists have been murdered and a number have suffered serious injuries in assaults –
Where? I took that to be across the country, but I do not know.
MR GLEESON: That is as we read it, your Honour, because it was dealing with, it seems, the general position. It speaks of the constitution of the Ukraine providing certain rights but:
freedom of speech and the press the government does not respect these rights.
It seems to be a finding about the government.
CALLINAN J: The Tribunal has accepted the country information and that seems to be in direct conflict with the finding that as a journalist or even perhaps as a former journalist he might be at risk throughout the country.
MR GLEESON: Yes, that is certainly ‑ ‑ ‑
CALLINAN J: What do you make if that is a factual contradiction? Is that a jurisdictional error?
MR GLEESON: Your Honour, yes, in the sense that the starting point should have been, with respect, what was in fact going to happen to this man if he went back. That would have necessarily involved looking more closely at ‑ ‑ ‑
CALLINAN J: I am asking you a more focused question. I know you have lots of other points, but how is that jurisdictional error?
MR GLEESON: Your Honour, if a decision is made on an assumption that he will not work as a journalist because, it seems, there is a threat to journalists across the whole country, if that is a fair reading of the basis on which the Tribunal has come to this part of its conclusion, then the Tribunal is not only requiring him to relocate but apparently to modify his behaviour by abandoning the very profession in which he expressed the political opinion for which he was targeted for persecution. In that sense, it directly offends, we would submit, S395 because it has assumed a modification of behaviour in order to avoid the very persecution for which he was targeted.
CALLINAN J: Is it a failure to take into account a relevant fact?
MR GLEESON: Yes.
KIRBY J: Is it not asking itself the wrong question. It has asked, what could they do reasonably or otherwise to avoid the persecution that has existed as distinct from what will they do if they go back and does that give rise to the fear of persecution for which the Convention gives relief.
MR GLEESON: It is both of those, your Honours, and in that context I mentioned I wanted to note several of the evidentiary statements, if it is now convenient, just to note them in this context. As to the journalism issue, if your Honours were to go back to, first of all, paragraph 28 on page 7, the evidence of the applicant was that notwithstanding the threats and the other matters that had happened to him:
It was his intention to continue his investigative work independently and to publish wherever possible.
Secondly, in paragraph 32, after he had to abandon his job and separate from his wife to protect her, he actively sought work with newspapers in several further cities or towns. Your Honour Justice Gummow will forgive me, but I understand they are in separate oblasts or regions to that region in which he was expressly targeted for persecution.
His reputation had apparently preceded him because editors were nervous about employing a person who had attracted adverse official intention.
So it seems that even outside his immediate region the persecution is extending in the sense of stopping him from expressing his opinion. Then if your Honours could note paragraph 52 at about line 28. When it was put to the applicant that:
If he went back to Ukraine and got work outside journalism it seemed to me he would not be at risk of further mistreatment. He said we will always be a journalist.
GUMMOW J: Where are you reading from?
MR GLEESON: Line 30 on page 11. So there was material before the Tribunal which was not rejected to the effect that this man intended, if humanly possible, to continue to express his political beliefs through his profession as a journalist. When that is set against the country information that your Honour Justice Callinan noted in paragraph 67, which is amply supported by the primary material set out from paragraphs 58 onwards, this issue arises.
It may be relevant to note that in the primary material in paragraph 58 the US Department of State (2002) report notes a journalist who was hanged in Kiev and appears to note at the bottom of that paragraph that the President and senior government officials discussed the desirability of the removal of a journalist. So it does seem that the threats to journalists and the carrying out of those threats extended beyond the particular region to other parts of the Ukraine.
KIRBY J: I should know this, but what does one do where we know from watching SBS news that the situation in Ukraine has radically changed since all of these events. It has an air of unreality to be looking at the pre‑revolutionary situation in Ukraine. This being a question of whether there is jurisdictional legal error, do we approach it by just saying, “There’s the record and we’ve got to see whether they made a mistake, and then it goes back to be reconsidered and can the new information be brought into the new hearing”, or is it fixed in time as to whether at the time the claim for refugee status was asked the person had the well‑founded fear at that time?
MR GLEESON: Your Honour, my understanding is that the law is clear that it has to be at the date of the decision. So if the matter is sent back ‑ ‑ ‑
GUMMOW J: He might not get a permanent visa though.
MR GLEESON: Your Honour, there may be practical issues such as that, but in answer to the first part of your Honour’s question, if there is jurisdictional error, we submit that it is an appropriate case for relief and the appeal ought to have been allowed below. If the matter goes back it will be dealt with on that material. If the matter were to go back and if the right question is asked, it is likely that there will be further material in both directions than what is in this book because the right questions just have not been asked, we would submit.
KIRBY J: I suppose that is correct but it just seems a little bit unrealistic, at least, say, if you come to the end of the question and ask the discretionary issue as to whether relief should be granted. Anyway, you press on and we just have to take it in stages, I suppose.
MR GLEESON: If your Honour pleases. These then are the summary submissions we make about the structural approach that is evident through this Tribunal’s reasoning. The first is that the Tribunal has declined to find whether the applicant is likely to relocate within the Ukraine or to what place or region. Secondly, the Tribunal has declined to find whether he will in fact give up the occupation through which he expressed the political opinion for which he was targeted.
Thirdly, the Tribunal has declined to answer those two questions, notwithstanding evidence from the applicant which suggested he may not relocate and may not abandon expression of his opinion. Fourthly, because those questions have not been answered, the Tribunal has never asked the further question: if he does relocate to place X and/or give up expression of his opinion, is that conduct of itself a manifestation of a fear of persecution?
GUMMOW J: A well‑founded fear of persecution.
MR GLEESON: Yes.
GUMMOW J: I think a theory is that you do not have a well‑founded fear of being persecuted within the meaning of the first limb of the Convention if you could avoid that persecution by “relocating” to another part of the country.
MR GLEESON: On that we are seeking to suggest that if you do not ask the question “Will you relocate, or what behaviour modification will be associated with relocation such as abandoning your expression of opinion?” you have not really asked the well‑founded fear question. In a sense you have assumed it away because there must be cases – this may or may not be one – where to require a person to relocate involves such an abandonment of or concealment of expression of political opinion for which the person was targeted, that that relocation of itself is the expression of or the manifestation of or the response to the well‑founded fear of persecution. There may be such cases and, because of the way the Tribunal has approached it, you never ask the question whether relocation plus associated modification is of itself evidence of the well‑founded fear.
CRENNAN J: Is the well‑founded fear question to which you have referred the question of whether it is objectively reasonable for the applicant to seek safety in another part of the country?
MR GLEESON: Your Honour, the way we would approach it is just working through the definition following the terms, et cetera, and as your Honours have pointed out in the cases, one starts with the factual question, what is it that you fear? Is what you fear something that rises to the level of persecution?
CRENNAN J: Yes, they are the subjective elements.
MR GLEESON: And is it persecution for a Convention reason? Now, having got to that stage one then moves closer to the question, is there an objective basis for the fear which you have thus asserted? At that level, if the answer being put to you is but there was an option that you could have lived in some other part of the country and therefore not faced the fear you claim, our submission is you do not simply test the option and the reasonableness of accepting the option in the abstract without knowing whether the person is likely to take that option and what modifications of behaviour are associated with it.
If the evidence is the person says, “I will move. I will move because if I live there I will die, and when I move I will not open my mouth again about corruption, I will never speak as a journalist because I know if I do I may well be targeted in the same way I was before”. If that were the findings one would then ask against those findings, “Does your fear remain well founded in circumstances where, even though you have moved, the reason you have moved and modified your behaviour is to avoid the very threat that was originally exposed to you?”
That question is one we submit that at least needs to be answered. The Minister’s approach is you never ask that question because you just say if there are options of living in place A or B, if you get to place B and you do whatever modification is necessary and you are not going to be targeted for persecution in B, then you lose your status, except in the circumstance where you can show it is “unreasonable” to move and at the unreasonableness stage one does not ask any questions about persecution. One asks questions, the Minister says, of what is “practical”, so that one has moved a very long way away from the language of the definition.
HAYNE J: This branch of the argument focuses, I think, on line 1 on page 24 in the Tribunal’s finding, correct me if I am wrong, but it seems to me to be an argument that focuses upon the sentence:
While he may not be able to work as a journalist elsewhere in Ukraine –
or focuses on that clause, and assigns error, the error being the failure to unpack the premises that underpin the conclusion there expressed, namely, why would he not be able to work as a journalist elsewhere in the Ukraine? In particular, would he not be able to work as a journalist elsewhere for fear of persecution on account of his expression of political opinion?
MR GLEESON: That is correct.
HAYNE J: That is what this limb of the argument seemed to me to come to, but correct me if I misstate this branch.
MR GLEESON: It certainly is that argument, your Honour, and the reason those premises have not been unpacked is that – it is at the beginning of paragraph 79 when one moves away from the question of what is likely to happen if you go back to what are options and are they realistic that you immediately, through the Tribunal’s reasons, stop looking at (a) what is likely to happen, and (b) why.
If I could just mention in that vein S395. In S395 the whole of the Court agreed that there was at least in that case a finding of fact as to what the applicants were likely to do if they were returned to Bangladesh. The difference between the majority and the minority was that the majority, with respect, said the question of why are they likely to behave in that way was one that needed to be answered. The minority said that question was not sufficiently engaged on the way the case was run below.
In that sense, we see in terms of the present question no real dispute in the court. Assuming you know what the person is likely to do and assuming it has been sufficiently raised on the case, as this applicant attempted to, one must ask the why question. In S395, could I just refer the Court in the majority to the judgment of Justices McHugh and Gummow.
GUMMOW J: I do not think so.
KIRBY J: I think it was Justice McHugh and myself and Justice Gummow and Justice Hayne.
MR GLEESON: I am sorry, your Honour. Your Honours are well familiar with the passages - Justices McHugh and Kirby in particular, at paragraphs 40 through to 43 and paragraphs 50 through to 51. Then in the other judgment of your Honours Justices Gummow and Hayne, particularly, commencing at paragraph 73, close attention to “what may happen if the applicant returns”; 74, one looks at what happened in the past; 75, one looks at like instances; 76, the dangers of classification; 78, “examination of how this applicant may be treated if he or she returns”; 80, the particular note that where it is political belief, the chance of adverse consequences increase if you draw attention to it, “But it is no answer to a claim for protection” and, critically, at the end of the paragraph 80 we rely upon the statement:
The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
Paragraph 82, the dangers of asking a question as to how an applicant is expected to live and 83, dangers of asking a question of what an applicant “is entitled to do” as opposed to what an applicant “will do”. The very problem we are relying upon, or asserting, we submit, is encapsulated in paragraph 83, that when the focus moves away from what the applicant:
will do) leads on to the consideration of what modifications of behaviour it is reasonable to require . . . leads to error.
It focuses the inquiry too narrowly. Then perhaps at paragraph 88, the Tribunal did not ask the “why” question. As I have submitted, the difference with the minority was relevantly, was the “why” question sufficiently raised on the case.
GUMMOW J: What do you say about Mr Gageler’s response – I think it is to this – at paragraph 35 of his submissions? He said you are reading S395 too broadly I think.
MR GLEESON: We would submit not.
GUMMOW J: He says:
The result brought about by internal relocation is in a practical sense in this respect no different from the result that would be brought about by external relocation which is the very thing which the asylum-seeker is seeking in applying for refugee status.
In other words, he is saying there is no suggestion that your client would not be operating as a journalist in Australia.
MR GLEESON: That has, with respect to Mr Gageler, alighted all of the questions under the definition of “refugee”. The Minister’s starting point, contrary to the Tribunal’s decision, appears to be to try and rest the principle in the second limb. The Minister seems to say they accept that the second limb means external protection and they have to accept that S152 and Khawar establish that. They then say if you are unwilling to take the benefit of external protection you should assume external protection involves a possibility of being sent home.
Immediately they have gone to possibilities and one of the critical things about the Tribunal decision in both cases is the second limb was never reached by the Tribunal. There are no findings and no questions were put to the applicant in either case as to what was the content of the external protection available through the diplomatic or consular service in Australia. So the Minister says, “Don’t ask what would in fact happen under external protection, just assume there is a possibility you would be sent home.”
Then, as your Honours will see clearly in the Minister’s submissions at paragraph 21, especially on page 9, the Minister carries the possibility exercise to the next step of saying, “Well, if it is possible you will be sent to your country of origin and in turn it is possible that you could locate in two different places and if in one of those places you may not have the sufficient risk of persecution then, without exploring which of those possibilities you will in fact seek to avail yourself of and why you will do so, without exploring any of those questions you jump to the question in paragraph 22, are you being unreasonable in not going to the better region?”
Now that, we submit, is squarely inconsistent with S395 because the two critical questions have not been asked: one, what will you do, and, two, why will you do it? This inquiry prevents those questions being asked and so – that is our answer to paragraph 35, your Honour.
GUMMOW J: I am not sure what is meant, for example, in paragraph 23 by the phrase “feared persecution”? What is the feared persecution, do you say, in your client’s case?
MR GLEESON: That the feared persecution in the case of the Ukrainian applicant is the fear of suffering a serious risk of harm, including physical injury or death ‑ ‑ ‑
GUMMOW J: If.
MR GLEESON: ‑ ‑ ‑ if he continues to express his anti‑government political opinions through his chosen profession.
GUMMOW J: I think you have to say that. You have to link the chosen profession to it.
MR GLEESON: That is his means of expressing the opinions.
GUMMOW J: S152 was something a bit more fundamental on the choice of profession.
MR GLEESON: Yes, it is not just choice of profession but that is the means over a 10‑year period ‑ ‑ ‑
GUMMOW J: No, but S152 was a rather more intensive situation. It was not just a choice profession.
MR GLEESON: In S152 one had a very serious threat of harm from non‑State agents and a question of how one brought the State into the equation sufficient to ‑ ‑ ‑
GUMMOW J: I am sorry, I meant S395. These numbers are just maddening. S395 was a bit more than choice of profession. One of the vices in the treatment before it got to this Court was that the situation of these two Bangladeshi citizens was treated as if it was just a matter of choice of this or choice of that. It was more fundamental to their personalities.
MR GLEESON: Yes, and that is why when I ‑ ‑ ‑
GUMMOW J: You have to jump from that, I think, into chosen profession.
MR GLEESON: The central basis is paragraph 70 of the reasons that ‑ ‑ ‑
GUMMOW J: If your client was working as a construction worker and there is muttering and grumbling about the regime, that is one thing. No one takes much notice. Probably a lot of people grumble about the regime. But if as a journalist he has a public platform, that is another thing. How does all this fit together?
MR GLEESON: The finding in paragraph 70 of the reasons on page 22 was that in terms of the past he had been subject to a campaign of harassment, including physical mistreatment, being “persecution and for the Convention reason of anti government political views imputed to the Applicant.” So that is the central ground of the feared persecution: “I will suffer physical harm and harassment and I will suffer it because I’m expressing anti‑government views”. Journalism comes in as the profession by which over a 10‑year period in the past – and apparently his intention to continue in the future, based on the statements I have been to – he would express his political views.
KIRBY J: This was put in my mind by the question Justice Gummow asked earlier. Is the textual foundation for the reasonableness question in the adjectival phrase “well‑founded”? In other words, can one say it is not a well‑founded fear if, acting reasonably or, as Lord Woolf put it, if it would not be unduly harsh, for you to go back to your country of nationality, gain their diplomatic assistance but when going back there shift to some other place in the country and do something else? Is that the textual basis for the reasonable relocation idea?
MR GLEESON: The answer to your Honour’s question is that it depends who your Honour is asking. In Canada and New Zealand ‑ ‑ ‑
GUMMOW J: No, we are asking you. We do not just react to what happens elsewhere; we react to what counsel submits to us. What do you say?
MR GLEESON: In our submission, your Honour, before one answers your Honour Justice Kirby’s question, one answers the anterior question, and I say this, with respect. The anterior question is: are we correct that you have to make a finding on what this applicant is likely to do if he is returned home, including where he is likely to live, how he is likely to modify his behaviour from that for which he was targeted and why that will occur? If you have to make those findings, that is our case.
GUMMOW J: I think the answer to Justice Kirby’s question is, “Yes, but this is the content I give to well‑founded.”
MR GLEESON: That is probably correct, your Honour.
GUMMOW J: Yes. That is an area of debate between you, probably, as to what this carries with it, what this baggage is that was well‑founded.
MR GLEESON: Yes, your Honour is correct. What we would then seek to put is, once you make those findings which were never made here, one set of findings will be this applicant will say, “I will go back to my home region. That is where I have lived for 32 years. That is where I have expressed my political opinions. I understand all the risks involved but this is what I will do”.
Now, if he says that you are then able to make findings as to whether his fear of persecution is well‑founded and at that point we would invoke S395 and say if that is what he does, he goes back there, he continues to fear that persecution, it is no answer to say, “But you are unreasonable to go back there and put yourself in the face of the governor”. But, at least, if the question has been asked and answered factually one can then assess the question of “well‑founded” on a proper basis.
HAYNE J: I think the closest they come to asking that question is in paragraph 52, page 11 at about line 28:
If he went back to Ukraine and got work outside journalism it seemed to me he would not be at risk of further mistreatment. He said that we –
presumably “he” –
will always be a journalist.
That is as close, I think, as the Tribunal gets to it, is it not?
MR GLEESON: Yes. The difficulty is, the Tribunal has not then dealt with that finding, that on that evidence it looks most likely he will go back, will continue as a journalist and as he said over the next page at 55 and 56, it would be very difficult for him to live “elsewhere in Ukraine”.
CRENNAN J: He is a qualified civil engineer, is that right? Did I read that somewhere?
MR GLEESON: Yes, your Honour.
KIRBY J: This is a relatively simple case, as far as you are presenting it, for jurisdictional error on the part of the Tribunal. This was a decision in May 2003. The decision in S395 was in December 2003. Therefore, the Tribunal was acting without the assistance of S395. Instead of asking what would in fact happen it was asking what could you do if you went back and did not really resolve the question which S395 says has to be resolved.
MR GLEESON: Yes. Your Honour, that may be a convenient point to note how that ‑ ‑ ‑
GUMMOW J: Just before you do that, what is the significance of the fact that this man has a degree in civil engineering and that he has come to journalism as a second string in his life? What was meant by “work in the construction industry”? Does that mean using his engineering degree when at paragraph 79 they talk about “obtain work in the construction industry”?
MR GLEESON: He is a painter in Australia. He was not working as a civil engineer. So there are no findings as to what that work would be.
GUMMOW J: That, one would have thought, was something that had to go into the consideration of what was reasonable, I suppose. It does not seem to have intruded. It is just this sentence at paragraph 3 and there it is.
MR GLEESON: Yes. I was going to just indicate to your Honours how the Federal Court has dealt with this issue since the High Court delivered S395. The first decision in which it was considered was the Full Court’s decision in NALZ v The Minister.
KIRBY J: Can I just ask you to footnote at this moment that Justice Madgwick I think in the Indian case expressed his own personal view that the line of Federal Court authority was not attending closely enough to what S395 required. Is that a correct assumption?
MR GLEESON: Yes, and that is in this case ‑ ‑ ‑
KIRBY J: But that he felt bound to conform to what the Full Court authority had said, but he flagged his own concern that it was not being sufficiently attentive to the main message of S395, which is that you have to try and look at what would happen in fact in the light of this person, as distinct from what they might do to hide the source of the cause of the persecution?
MR GLEESON: It is a little stronger, your Honour. In NALZ 140 FCR 270 it was squarely argued that Randhawa needed to be reconsidered in the light of S395. Justice Madgwick in dissent held that that should happen at paragraph 8.
KIRBY J: He was exercising the appellate jurisdiction of the Full Court, presumably on delegation from the Chief Justice of the Federal Court.
MR GLEESON: In the Indian matter. In this matter he was sitting on the Full Court and he was in dissent. He held essentially what we are arguing in paragraphs 8, 9 and 11. There is one little point I need to note about 9, but essentially he said you need to re‑look at this principle in the light of S395. Justices Emmett and Downes forming the majority took a different approach. That is clear at paragraph 46.
KIRBY J: Do we have to look through the Federal Court’s authority except to note the differences of view that existed in NALZ?
MR GLEESON: For our purposes I simply want to draw the Court’s attention to the fact that once your Honours had delivered S395, this point was taken, it was raised squarely. This case is taken as the current binding authority in the Federal Court that S395 did not require any reformulation of the question. The reasons given for that are essentially paragraph 46 and we submit that paragraph 46 does not ‑ ‑ ‑
GUMMOW J: And 57. Justice Downes says:
The present case is thus one step removed from S395. It does not contemplate changed behaviour to avoid persecution but to avoid creating a wrongful perception of membership of a protected class.
MR GLEESON: It is distinguishable for that reason, your Honour. The majority were saying that he was wrongfully perceived to be a member of a class which was subject of attack. If he were to remove that wrongful perception, he would no longer be attacked. Therefore, that sort of modification where you clear up an error is not something that gets you back into refugee status. We do not have to challenge that reasoning but what has happened is this case has been taken as authority, contrary to Justice Madgwick’s view, that you do not need to refocus the inquiry on what will in fact happen and why. To that extent we submit the majority is in error, and in the later cases in the Full Court this has been treated as the touchstone. We submit it is an inadequate reassessment of the issue in the light of S395.
I will give your Honour the references to two other Full Court decisions in the Federal Court that have been in similar vein. There was a decision in SKFB v The Minister which is unreported on 21 July 2004.
GUMMOW J: What is the electronic citation?
HAYNE J: [2004] FCAFC 142.
MR GLEESON: That is correct. That is the first decision, Justices Branson, Finn and Finkelstein. The matter is dealt with briefly at paragraphs 12 to 13. The second decision is NAIZ v MIMIA [2005] FCAFC 37 at paragraphs 10 to 14 in particular and also perhaps at paragraph 43.
KIRBY J: Is there a common theme running through the point of distinguishing S395, or not?
MR GLEESON: The common theme is probably that the Federal Court has focused on one aspect of the reasoning in S395 which is whether character modification or behaviour modification can of itself sometimes be evidence of a well‑founded fear and the Full Court seems to say that having to relocate is not the right sort of modification. But as to the fundamental point in S395, what is likely to happen, why and assessing the chances of persecution on that basis, we would submit these cases have not squarely grappled with it.
Your Honours may wish to observe it in the last of those cases, NAIZ. In paragraphs 10 to 14 Justice Branson has attempted to give what is probably the most detailed restatement of the internal relocation rule. Her Honour says that the rule might have an application under either the first or the second limb. As to the first limb her Honour perhaps puts emphasis on the words “owing to” as a causative element by indicating that:
If the putative refugee could reasonably have re-located within the country of nationality, rather than fled –
here, he or she fails the first element. That, we submit, has some difficulties. That seems to be focusing on the position at the time of flight to Australia, not the position at the time of the decision. It appears to build in a general rule that prevents any other questions of well foundedness being considered. It reads a requirement of reasonable behaviour into the definition. Finally, if that is the source of the rule, there are no findings of fact that would attract it here, as in it was never put to either applicant, “Given the things you say had happened to you there, why was it that the day before you came to Australia you didn’t go to X or Y?”
HAYNE J: This again may show the difficulties about putting everything into neat little boxes. We are presently concerned not with a social group case, we are concerned with a political opinion case, are we not, says he promptly drawing two little boxes, but the asserted persecution – a fear of persecution – is on account of expression of political opinion. In the end, does your point come to more than this, that it is no answer to a case of well‑founded fear of persecution for reasons of political opinion to say, “Well, if you go home and don’t express it there is no risk”?
MR GLEESON: As I said to your Honour earlier, that is pretty close to the centre of the point.
KIRBY J: It is not quite because it is, “Go home. You can express it in a modified form but do it in another district, please, because you will only upset the governor if you do it in his district”.
MR GLEESON: Yes, and ‑ ‑ ‑
HAYNE J: That turns on the way in which you unpack that sentence I earlier drew attention to.
MR GLEESON: Yes, with the critical divergence being the point when you move from what will happen to what could happen one stops answering the critical questions it needed and the factual findings then become – but there are options, “I do not need to look really at what your behaviour modification is going to be.”
KIRBY J: Do you test what will happen by reference to what, in the ordinary course of affairs it is reasonable that a human being will do or, to use Lord Woolf’s expression, “what it would not be unduly harsh for an individual to do”?
MR GLEESON: Your Honour, with respect to Lord Woolf, the English approach has come at the matter slightly differently. England has had the chance to consider what your Honours have said in S152 and have rejected it. They have said that the second limb concerns both external and internal protection. So for that reason in England the second limb embodies a general notion of, “Are you unwilling to avail yourself of internal and external protection of your country by reason of a well‑founded fear?”
KIRBY J: Mr Gageler points out it is not just the United Kingdom. It is also, I think, Canada and New Zealand, and by regulation, the United States.
MR GLEESON: Yes. Your Honour, would it be convenient if I come to the overseas authorities in a moment and just complete this part? Your Honours, that was the first broad topic. The second topic which can now be brief is Randhawa 52 FCR 437 itself which is how did this principle come into Australian law? Although it is difficult to be clear on the textual basis that Randhawa adopted, it seems to be more the second limb pre‑S152 and therefore a limb that is no longer apposite. Your Honours, the reason I say that is that on page 438G, the last paragraph:
The delegate accepted that the appellant did not wish to avail himself of the protection of India but observed that she had to assess whether this was because the appellant had, for a Convention reason, a well‑founded fear of persecution.
That seems to be the second limb, unwilling to avail oneself of protection because of a well‑founded fear.
KIRBY J: Is that really inconsistent with S152, because you may be unwilling to avail yourself of protection externally because of what you know goes on internally?
MR GLEESON: It is inconsistent in the sense - it is decided at a time when the refocus of the second limb on external protection had not occurred and so there is no focus on what will in fact happen if you avail yourself of external protection. If I could then go to page 440C. Justice Davies at first instance approached the matter on the same basis and at letters D to E the primary argument of counsel for the appellant in that case also appeared to focus on the second limb and said provided you have a well‑founded fear of persecution in one part of the country such that you are unwilling to avail yourself of the protection of the country, you are a refugee.
So it was put by the appellant on the second limb and then there was an alternative narrower submission. At the foot of the page Chief Justice Black rejected that primary argument and stated there is:
no warrant for construing the definition so that it would give refugee status to those who, although having a well‑founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.
Although it is not completely clear, his Honour seems to be upholding Justice Davies, upholding the delegate and saying that this principle is rooted in the second limb. That seems to be confirmed because there is a reference to the Supreme Court of Canada in Ward in turn relying upon Professor Hathaway who clearly is a second limb man and also a man who relies upon the surrogacy notion as a driving force to explain the whole of the definition. We draw attention to what several of your Honours said in S395 about the dangers of resorting to a general notion of surrogacy without rooting it in the text.
At page 442, could I just draw attention at the top to where the Chief Justice cites paragraph 91 of the UN Handbook. That seems to be the origin of this principle in the various countries. If your Honours wish to find that, it is in the respondent’s book of accompanying material. It is found at page 71. When the UN in 1979 referred to this topic they did so in paragraph 91 in the context of a section on “is outside the country of his nationality” and they did so, we would submit, in a manner designed to restrain states from denying refugee status rather than as a principle to deny claims and that is clear in the first sentence.
All the UN was saying, with respect, was if you do have a well‑founded fear in one part of the territory and implicitly that is where you are likely to return to, your fear remains well‑founded notwithstanding you have refused an option of relocation. It is not entirely clear that that is what they are saying, but we submit it is the better reading. Although it predates, of course, S395, we would submit it is not inconsistent with an approach which says focus on what the person will actually do, and it is dealing with one possibility, namely, the person will not relocate. What has happened, particularly through Randhawa and other cases, is that that has been turned into the opposite principle that you will be assumed to take advantage of reasonable relocation.
I will just give your Honours for assistance that when Professor Hathaway recently wrote about this topic – it commences at page 197 of these same materials – he dealt with paragraph 91 at pages 201 and following and noted that in effect paragraph 91 of the handbook has been inverted from its original purpose.
KIRBY J: Where is this in these materials; what page?
MR GLEESON: Commencing at page 201 at the bottom.
GUMMOW J: “While there is little doubt ‑ ‑ ‑
MR GLEESON: Yes, and over the page. In practice it has led to the opposite purpose to that it originally had. Just while your Honours have ‑ ‑ ‑
GUMMOW J: Perhaps we could look at the US at page 259.
MR GLEESON: But the US is a statute, your Honour.
GUMMOW J: I know. He talks about State practice. This is State practice.
MR GLEESON: Yes.
GUMMOW J: At page 259, about halfway down the first column, (2). The numbering system in American legislation is beyond readily understanding, but paragraph (2), “Well-founded fear of persecution”, (i), and that goes (A), (B), (C), and then (ii):
An applicant does not have . . . if the applicant could avoid persecution by relocating to another part of the applicant’s country . . . if under all the circumstances it would be reasonable to expect the applicant to do so.
Is that an example of what Professor Hathaway is complaining of?
MR GLEESON: Yes.
GUMMOW J: He has to live with it though because it is State practice.
MR GLEESON: And it is essentially what Randhawa has done, namely the question of well‑founded fear is to be answered solely by asking what could you do to avoid persecution and would it be reasonable to do it? The other part that your Honours may find of ‑ ‑ ‑
CRENNAN J: But does not the insistence on reasonableness and each way of formulating it mean that to say the meaning is inverted does not take you very far because you are talking about a difference which might not be a difference that makes any difference.
MR GLEESON: Professor Hathaway’s point – and he is a critic of locating the rule in the first limb, well founded. He wishes to locate it still in the second limb ‑ ‑ ‑
CRENNAN J: I understand that.
MR GLEESON: - - - which we cannot do here. The point he, as I understand it, seeks to make is that once you move from what would you do to what could you do and then you are assessing it under a reasonableness guise, the danger is that you are no longer actually answering the question under the statute because you are not actually assessing the circumstances of the individual, why the person is doing what the person is doing.
CRENNAN J: But there would be no bar to doing that by reference to the criteria of what is reasonable, would there?
MR GLEESON: The essential bar is you never ask where the person will in fact seek to live and how they will otherwise modify their behaviour in order to live there and never ask whether those two matters of themselves reflect persecution. One simply asks ‑ ‑ ‑
KIRBY J: This is very relevant in the Indian case because the Tribunal appears to have just assumed you can pack up your bags and move from a Tamil‑speaking State and go into Kerala, which has an entirely different ethos, entirely different food, different language. 2.3 per cent speak Tamil but that is a tiny fraction and it is so very different. It is not an assumption to be easily made. It does not seem to be quite the same in Ukraine, but I just was astonished at the thought that a person could move from Tamil Nadu to Kerala easily if their language, history, tradition, food, clothing and everything else was that of Tamil Nadu.
MR GLEESON: Yes, and of course, with the Indian example - with my Indian client – he is an example of a person who did in fact relocate once. He suffered his, as he claimed it, rather severe persecution in Tamil Nadu. He moved to Madras, or Chennai, and on his evidence continued to suffer persecution there. So he was a person who had ‑ ‑ ‑
KIRBY J: Chennai is in Tamil Nadu. It is the capital of Tamil Nadu.
MR GLEESON: Yes. Your Honour, I am just indicating he had ‑ ‑ ‑
KIRBY J: He had moved within the state.
MR GLEESON: He had moved within the state once. He was continuing to face the persecution. He then fled here but the difference in the reasoning in that matter, which your Honours will have observed, is that unlike the first case where at least there are some fairly comprehensive findings of what was the persecution in fact suffered in the past and then the rule comes in to deny status, in the second matter the Tribunal did not really descend to make any distinct findings on the extent and degree of that persecution. The claims were rather severe claims. The Tribunal’s approach was to say, “I find you had some problems in the first town, you had some problems in the second town, I find you could go to the third town.”
That is another aspect we just wanted to raise and it is probably convenient to mention it in respect to the Indian appellant now, that an approach has been sanctioned in the Federal Court that because of the existence of this rule the Tribunal can, if it likes, go straight to the relocation option without making distinct findings on what has in fact happened to the person in the past, what is the country information and based on that past experience what would be likely to happen in the future.
We submit that that approach where one avoids making findings on the very claims you make, or makes de minimus findings, is one that also bespeaks error and it is an example of the rule being too powerful. Could I just give your Honours the two Federal Court cases which have adopted that approach and we submit it underlies the Tribunal in the present case. The first decision is Aras v The Minister (1998) 50 ALD 797.
GUMMOW J: It is an administrative law decision?
MR GLEESON: Yes, your Honour, and, Syan v Refugee Review Tribunal (1995) 61 FCR 284, a decision of Justice Beazley. That approach, we submit, has influenced the decision of the Tribunal. If I could just briefly give your Honours the passage, it is in the second appeal book at page 9, particularly between about lines 25 to 31. We accept there was “some kind of conflict”. There was some kind of problem and some problem after he arrived in Madras in Tamil Nadu. Now, as against the evidence between pages 5 to 8 there have not been real findings on what occurred in the past, whether it was persecution, whether it was for a Convention reason. It has simply been passed over.
Your Honours, I was just completing Randhawa. I have taken your Honours to the Chief Justice’s decision. Again, at 52 FCR 437 his Honour then stated the principle at the top of page 443. Justice Beaumont agreed but took a slightly different approach to the matter. His Honour, particularly at page 449E, quoted from Justice McHugh in Chan 169 CLR, Justice McHugh in turn citing the decision of Jonah in 1985 in England. We would submit that Justice McHugh in Chan was speaking about the concept of persecution in that passage and was not in any way endorsing or really commenting on internal relocation. However, it may assist your Honours to note that it is this decision of Jonah in 1985 which for many people has been taken as one of the early progenitors of the rule.
KIRBY J: What is the citation of that?
MR GLEESON: It is [1985] Imm AR 7. We have copies with your Honours’ associates.
GUMMOW J: A decision of Lord Nolan when he was in the Queen’s Bench Division.
MR GLEESON: Yes. It is interesting in this sense that it was a case where the applicant was held to have a well‑founded fear of persecution. The applicant had suffered persecution in Ghana and immediately before fleeing to England had gone into hiding in a remote family village. That is clear at the bottom of page 8 of the report. The relevant finding of the adjudicator was on page 9 in the second last paragraph which was:
that if the appellant on his return to Ghana sought to involve himself once again in union affairs, he could be in some jeopardy, but there is no acceptable evidence to indicate that he would be at any material risk if he was to resume his residence in his remote family village –
and the adjudicator dismissed the appeal. His Lordship dealt with the matters commencing on page 11 and then on page 12 in the middle spoke about the meaning of the word “persecution” and it was in this context that he made the statements that Justice McHugh cited. The relevant passage is then at the bottom of page 12 over to page 13 and it is really just the last sentence this whole case hinges on:
To my mind, accepting what was recognised by the adjudicator in this case as the likely consequence of the applicant’s return to Ghana, it follows as a matter of law that there was a well‑founded fear of the applicant being persecuted ‑ ‑ ‑
KIRBY J: Where is this, I am sorry?
MR GLEESON: Page 13 last paragraph.
KIRBY J: I see.
MR GLEESON: His Lordship is speaking of the likely consequences of the applicant’s return and we would ‑ ‑ ‑
KIRBY J: In fact.
MR GLEESON: In fact we would read that as, that based on the adjudicator’s finding at page 9 it was highly unlikely that he would go to the remote family village where he could not work and would be separated from his wife. It was most likely he would return to the trouble zone. Based on the fact that he was likely to return his fears were well founded. We would see this as being entirely consistent with a proper approach under S395, what is likely to occur. This is a person who is likely to go back to the trouble zone, he is likely to face the continued persecution and his fear is found to be well founded.
Unfortunately, this case has been taken by many commentators and judges to stand for something different, which is that you do not consider what he is likely to do; you just consider the possibilities and you ask whether it was unreasonable for him to avoid the remote village. That language of unreasonableness is nowhere in the judgment and we submit in a sense some of the errors have arisen from the way that has been read. Certainly that explains what Justice Beaumont did. Justice Beaumont set out this decision at page 450 of Randhawa, said he agreed with it, said that it was really just a question of fact, then on page 451 set out paragraph 91 of the handbook and then said:
I agree. That is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.
His Honour, it seems, rather narrowly concluded there was no error. Essentially it was for the reasons on 452D that the applicant’s case lacked sufficient detail to warrant further review. Justice Whitlam agreed with both judges at page 453B but preferred Justice Black’s approach to paragraph 91.
KIRBY J: I am getting a little bit confused now because there seems to be a common theme running through cases in different countries that some degree of attention needs to be given to reasonable relocation, and that seems to be reflected in the handbook and in other United Nations material. Then the question becomes: how does one take it into account and what is the textual foundation for taking it into account?
We in Australia have put ourselves out on a bit of a limb in the second limb of the definition and therefore we go back to the first limb. But I do not take you to say that the question being whether the country of nationality can provide protection that it is completely irrelevant in the country of nationality that there might be a place where you can have safety and get on with your life in an ordinary way. The point that divides you from the respondents is that you say that has to be judged by reference to the particular applicant and what that particular applicant, on the basis of the evidence, probably will do. That is what the Tribunal has to address and that here, without the benefit of S395, the Tribunal did not do it.
MR GLEESON: Yes. What the applicant will do to the extent that there are modifications involved in ‑ ‑ ‑
CRENNAN J: Does that have to be reasonable? For example, if an applicant said, “I’m going to go back to my home town and I’m going to live there” and the evidence showed that there was a very localised persecution and certainly state resources in 90 per cent of the country where that applicant would be perfectly secure and safe from persecution, how would one then assess the evidence if the applicant said, “Well, if I go back I’m determined to stay in my home town where I’ve always lived”?
MR GLEESON: Your Honour’s question, with respect, raises the hardest case where all the findings have been made, the person says, “I will go back” and perhaps says, “I will continue to express my political opinion because that is my belief”.
CRENNAN J: Because if the right question is whether it is objectively reasonable for the applicant to not wish to – well, if the right question is to ask whether it is objectively reasonable to seek safety or security from persecution in 90 per cent of the country, if that is the right question, it will have one answer, whereas if the focus is to be on the applicant’s subjective determination to stay in an unsafe place, I am just finding it rather hard to work out how it will all work in practice.
MR GLEESON: Yes, your Honour, there are probably two possible ways of answering the question. The first way – and we have ventured this in our written submissions – is that as part of an overall exercise of assessing whether your subjective fear is well founded, once you have found all the facts then if you have declined to go elsewhere the reasons for that would be taken into account as part of the exercise. So instead of it becoming a determinative rule that bars you, it becomes a factor. That is one approach and that is the approach that has been urged by two of the commentators. We have given your Honours an extract from the article by Germov and Motta Refugee Law in Australia and it is particularly at about pages 396 to 398 that they ‑ ‑ ‑
KIRBY J: Is that in this material?
MR GLEESON: Your Honour’s associate will separately have it.
KIRBY J: I see.
MR GLEESON: They say the current rule is wrong. It has erected as an absolute preclusionary barrier something which may only be ‑ ‑ ‑
GUMMOW J: Who are these authors? Someone who writes it down and gets it published?
CRENNAN J: I think Germov is an author of a textbook on migration law, is she not?
MR GLEESON: Yes.
CRENNAN J: Or a co-author.
MR GLEESON: That is the best I can do to answer your Honour’s question. I was putting it to your Honours the passage commencing at 395 through to 398 is an example of an approach which says it should not be an absolute preclusionary rule but one considers a whole series of factors. So, for instance, they say at the foot of 395:
internal state protection, including where it is available, whether it is available, and whether it is effective –
does go to whether your fears are well founded and they say:
Hence, there may be fact situations that show the state concerned offers ‘adequate’ protection in ninety per cent of its territory against the kind of harms –
feared, which may suggest your fears are not well founded:
However, information concerning the nature of the threat posed to the applicant from that remaining ten per cent of territory, its potential severity, its source, and the reason the applicant may be selected for it, may well support the finding that in relation to the country as a whole, their fear –
remains well founded. They then give a contrary example where, notwithstanding the risk may emanate from 90 per cent of the territory, in certain circumstances the fear may not be well founded. That probably does not erect reasonableness as an element in the test per se, but it urges a factual inquiry which will be highly sensitive to the particular circumstances and, we would submit, that would be an appropriate balance.
GUMMOW J: One of the problems with focusing upon protection and pushing the words back into the country of nationality as distinct from availing it outside is that you get into the situation that the House of Lords had to deal with in Januzi [2006] 2 AC 426 where the submission was, which they rejected - but the submission appears at the top of 431, line 4 – this is the submission rejected:
Where the country of nationality cannot provide the basic norms of civil, political and socio‑economic human rights protection the claimant is entitled to seek surrogate protection in a state party –
They rejected that.
MR GLEESON: Yes.
GUMMOW J: You do not advocate that, do you?
MR GLEESON: No.
GUMMOW J: They rejected it, particularly at paragraph 7 in Lord Bingham’s judgment on 440 and ‑ ‑ ‑
KIRBY J: Why do you not accept that? I think in this Court we have said from time to time that if you look at the history of the Refugees Convention its purpose was to impose surrogate obligations because of the inability or failure or unwillingness of the country of nationality to provide protection and that there are certain universal standards of civilisation that you cannot demand a person to go back to if a country of nationality is breaching them.
MR GLEESON: The argument was a bit more ambitious in Januzi.
GUMMOW J: More ambitious than that. The question is, what sort of rights?
MR GLEESON: Your Honour, there were a fairly high degree of specificity of rights that one would receive in Australia.
GUMMOW J: But what was being said was you could get a pension in the United Kingdom. You cannot get a pension in the Sudan, therefore you do not go back.
MR GLEESON: Yes. We do not advance that - (a) it is not the factual basis of these two applicant’s contentions, (b) it has a certain problem with it and ‑ ‑ ‑
GUMMOW J: It drifts away from persecution.
MR GLEESON: It drifts away from persecution and we submit that is one of the dangers. When one has first built in the hypothetical, “Could you do something?” not, “Will you do it?”
GUMMOW J: Or to be more precise, it drifts away from the phrase “owing to a well‑founded fear”.
MR GLEESON: “Owing to a well‑founded fear” but, with respect, the overseas cases which have made that first drift then say, “But, we now have ‑ ‑ ‑
GUMMOW J: They have to pull it back.
MR GLEESON: We have to pull it back. We pull it back with a concept which is not in the Convention which is reasonableness. They then redefine reasonableness as not unduly harsh. They then have a further series of debates about what is and what is not unduly harsh and so we are not advocating that approach. We see that as a danger of ‑ ‑ ‑
GUMMOW J: Or without the advantage of what we had to say on the subject some years before, but anyhow, you do not have to take that up.
MR GLEESON: Your Honours, the House of ‑ ‑ ‑
KIRBY J: I think they had to have that advantage but they cast it aside ungratefully.
GUMMOW J: They have never done so. It has never been considered.
MR GLEESON: In paragraph ‑ ‑ ‑
GUMMOW J: Anyhow, we have to focus on what is involved in this notion of reasonableness and well‑founded fear.
MR GLEESON: They did in paragraph 66 cast aside what your Honours have said about the second limb. They looked at it and said it is a living instrument so it does not mean now what it meant then, so protection ‑ ‑ ‑
GUMMOW J: No, they did not. They rejected that. That was the submission they were rejecting, was it not, the living instrument idea? It is the whole tenor of Lord Bingham’s speech. Anyhow, you do not have to stay quarrying around in Januzi, I do not think.
MR GLEESON: No. I was just going to mention Lord Carswell’s speech at paragraph 66. He came back more squarely to the second limb and ‑ ‑ ‑
GUMMOW J: I know he did.
MR GLEESON: If your Honours please.
CALLINAN J: Mr Gleeson, the refoulement provision, is it Article 33?
MR GLEESON: Yes, your Honour.
CALLINAN J: It provides some context to this because it talks about the frontiers of territories, I think, does it not?
MR GLEESON: Yes. I had wished to put to your Honours that since that is important in the manner in which our Migration Act picks up cases where Australia has protection obligations in turn under the Convention, Article 33 does prohibit return to the ‑ ‑ ‑
CALLINAN J: Yes, “the frontiers of territories” and I take “territories” not to be internal territories. It means territorial polities, territories that have real polities.
MR GLEESON: Yes. We think that does provide something of an answer to the Minister’s submission that is based on the possibilities. It just says if you go to ‑ ‑ ‑
CALLINAN J: I thought it might have been against you.
MR GLEESON: We would submit that unless you actually had a finding against the applicant on the second limb, namely, if you go here for external protection what will happen is they will safely transport you to Kerala or to whatever is this identified place in the Ukraine that is the safe haven.
CALLINAN J: Or will allow you to go there. Is there any restriction upon you going to the safe part?
MR GLEESON: But you would need to have some consideration of that, as opposed to an approach which says there is a possibility they will return you, if you return there is a possibility you could end up in A or B. There is no examination of where you are actually going to end up.
CALLINAN J: If you can get back into the territory there are parts of the territory. It does not say you cannot be returned if you are at risk in Kiev, for example, only. It does not say that. One reading might be you cannot be returned if you are at risk anywhere in the territory. Another reading might be you cannot be returned if there is risk anywhere at all in the territory. The emphasis seems to be upon national – because I think that is what territorial relevantly means – upon the nation rather than upon a part of the nation.
MR GLEESON: Yes. One way in which the UN papers have dealt with a related issue is that where there is a state element involved in the persecution from which you fled, even if it only be in a part of the state there is a ready presumption that the national state has failed by allowing the regional government to intimidate you with death threats so that ordinarily there is a presumption which will satisfy Article 33 once you have shown that you have been targeted by a regional government. One would normally expect something fairly specific to counter that presumption by way of saying, “Here it is why the Ukrainian Government can in fact provide journalists” for example, “expressing their political opinions with adequate protection elsewhere within the Ukraine such that we can lawfully return you to the frontier and leave you to go on your way”. That is the element that is missing. I will just give your Honours that reference. It is in the respondent’s materials, again. It is page 264, paragraph 13.
GUMMOW J: How are you going on your five point structure, allowing for our distractions?
MR GLEESON: I am up to point four, your Honour. Point three I have covered in passing. So, point four I just wish to briefly mention the overseas authorities, if that is of assistance at this stage?
KIRBY J: Just before you do that, could you remind me what your answer to Justice Crennan’s question was on the point that it cannot be entirely a subjective decision of the applicant that he is just not going to go anywhere else; he is going to go back to his own home village. Can it be just his decision and that that thereby does attract the Convention or not, or is it his or her reasonable decision?
MR GLEESON: I had put that it had to be a well‑founded fear which would require a consideration of a range of detailed factual circumstances commencing with what you are going to do and why and what you fear in that circumstance. In a wholly capricious case where a person fled to Australia, had a real option to go somewhere else, there were none of the extraneous difficulties we are referring to, the person said, “I just like Australia’s pensions more than I like the pension system of the Ukraine”, that person might not satisfy the “owing to a well‑founded fear of persecution, is outside their country”. There will be cases in the middle but ultimately, although it is not easy, we are urging that to erect reasonableness or practicality as a separate statutory inquiry only leads to more error.
KIRBY J: Your point is that raising reasonableness or “unduly harsh” has no footing in the language of the Convention and it is better to go back to the question of whether the fear is well founded and owing to, and then you have your grounding in the words of the Convention.
MR GLEESON: Yes. Your Honours, is it convenient to deal with the overseas authorities briefly?
GUMMOW J: What are we going to get from them?
MR GLEESON: The bottom line submission is that none of them provide a satisfactory substitute for close attention to the language of the definition of “refugee” and to the extent they have provided substitute formula, they are distracting rather than helpful.
GUMMOW J: But, as Justice Kirby put to you, they all involve some measure or other of notion of reasonableness in some shape or form. They all contemplate in some way or another relocation as a possibility.
MR GLEESON: Yes. None of them, it seems ‑ ‑ ‑
GUMMOW J: There is a difference as to what is involved.
MR GLEESON: Difference in what is involved. None of them have been asked, it seems, to look squarely at the S395 approach and what follows from it. All of them have trailed quickly into what could be expected to do, how a person could be expected to behave. Most of them have accepted that one erects a substitute standard of reasonableness for the Convention and then tries to work out all the problems of reasonableness. So that is the broad position that they have come to.
GUMMOW J: Does any of them deal with the situation in this case where the relocation has to carry with it a modification of professional occupation of choice, or do they not descend to that degree of detail?
MR GLEESON: I think not, your Honour.
HAYNE J: And in particular, do not explore what it is that would motivate the change of occupation, whether it is economics or some other reason.
MR GLEESON: Yes, and we accept that those matters come back in under the proper factual answer to the statutory question.
GUMMOW J: Your submission at the end is that the Tribunal here was operating before S395. If you take into account the reasoning in S395 you bump against the Full Court decision as to relocation. The question for us, how is that to be resolved? Mr Gageler says you do not bump up against the Full Court decision.
MR GLEESON: Yes, and the two critical problems for the Minister with that are that Randhawa was pre-S152 and therefore not closely looking at the textual limb.
GUMMOW J: Yes, I keep giving the wrong number.
MR GLEESON: Yes, and that was just something it never had to grapple with. It seemed to think it was in the second limb but, assuming protection was a broader concept under the second limb and then, as we have sought to identify in the shift from Lord Nolan through to what Randhawa approved, there seems to have been a critical jump from what could happen or might happen or be expected to happen to what will happen, which is what should have been the test, and that is something that when the Full Court was asked to reconsider it in the post‑S395 decisions, we submit it has been given insufficient attention and the dangers in the approach that has been sanctioned are very clear in these two sets of reasons.
So, your Honours, in broad terms, as your Honours know in Canada Ward was decided by the Supreme Court in 1993 and, according to our researches, the question has not been back to the Supreme Court. The matter was ‑ ‑ ‑
GUMMOW J: This Court has looked Ward on various occasions.
MR GLEESON: You have looked at Ward, your Honour is correct. So that the leading decision in Canada in ‑ ‑ ‑
GUMMOW J: [1993] 2 SCR.
MR GLEESON: Yes, that is Ward and the Minister places some reliance on Ward and said your Honours in S152 have effectively answered all these questions by adopting Ward. Ward, as your Honours will recall, was the case where the Irish citizen did not want to go back because he was sentenced to death by the Irish National Liberation Army for releasing hostages and there was a concession by the UK Government in the Canadian Supreme Court that they could not protect this man’s life if he were to go back. Ward looked at the matter. For example, at page 712 of the judgment, first of all, in the first column they set out the definition and then made a brief comment on it and, if I could then go to page 722 in the first column at about point 3 the court says:
that the lynch-pin of the analysis is the state’s inability to protect: it is a crucial element in determining whether the claimant’s fear is well-founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.
That is a second limb type argument. The court goes on to say just below the extract:
Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well‑founded, if there is an absence of state protection.
GUMMOW J: Protection against what?
MR GLEESON: Against, in this case, death threats from non‑state agents. That is why we submit the context of Ward is a little removed from our present problem. The Minister says this solves all our problems. We submit the Court was grappling with this problem when you establish persecution with non‑state agents and that is clear on page 723 in the first paragraph:
Ireland’s inability to protect was established through evidence that state agents had admitted their ineffectiveness, the Board was then able to presume the well‑foundedness of the claimant’s fears.
At the foot of that column the court addressed whether the plaintiff first has to seek the protection of a state and concluded over the page, this is page 724, in the middle column, following Professor Hathaway, it is:
only in situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
That is in the context I have identified. The Minister says that ‑ ‑ ‑
GUMMOW J: Where does the Minister say this? I am sure you would not verbal a Minister. Let us look at the text.
MR GLEESON: I would never verbal Mr Gageler. It would be most unwise. In paragraph 18 ‑ ‑ ‑
GUMMOW J: Through to 22, I think.
MR GLEESON: Through to 22. The Minister asserts in 19, well, because the joint judgment of three Justices in S152 quoted part of this paragraph that has established a general proposition that you always fail under the second limb where you are reasonably, in the sense of practically, able to avail yourself of the protection of your home country and then from that general principle you get to the specific relocation principle.
That is the linchpin of it. We submit that the court was dealing with a more specific problem which was how to deal with persecution by non‑state agents and that the finding of course here was that because of Ireland’s admitted inability to protect the claimant it did not make much sense to require him to go back to Ireland first and ask to be protected. By then he might be dead. So, Ward, we think, is not central.
Now, the other leading decision in Canada is the Federal Court of Appeal, Thirunavukkarusu (1993)109 DLR (4th) 682. Your Honours will see on page 683 at the bottom what is described as the IFA – internal flight alternative – is a convenient shorthand way of describing a fact situation. Over the page at letter b:
That definition requires that the claimants have a well‑founded fear of persecution which renders them unable or unwilling to return to their home country.
That seems to be a second limb approach. At the foot of that column Ward is cited and the surrogacy principle is ‑ ‑ ‑
GUMMOW J: I am just reading Justice Linden at the top of 684:
The idea of an internal flight alternative is “inherent” in the definition of a “Convention refugee” . . . That definition requires that the claimants have a well‑founded fear of persecution –
et cetera.
MR GLEESON: It is there being located in the second limb:
which renders them unable or unwilling to return to their home country.
Because the second limb is viewed differently in Canada, the present textual issues are not considered. If I could then just go over briefly to 687 ‑ ‑ ‑
GUMMOW J: Whether it was the first limb or the second limb does not much matter for this case at the end of the day. Everyone agrees there is some reasonable notion involved. Whatever the door is by which you enter that room is a matter of some debate but, once you are in the room, they all agree there is some reasonableness notion, do they not? We are just going round in circles unless we get something on these cases which are helpful for Mr Gageler’s case as to what this notion of reasonableness is which you want to dispute.
MR GLEESON: Your Honour, perhaps I am dealing with reply. I do not contend these cases provide an answer to the problem.
HAYNE J: In particular, whether these cases are concerned with religion or politics, where there are questions of expression of belief as well as bare fact of membership of race or social group.
MR GLEESON: Yes. Your Honours, that completes the fourth topic. The last topic was the additional ground for the Ukrainian applicant. I think I have covered that in ‑ ‑ ‑
GUMMOW J: You mentioned that he had something extra.
MR GLEESON: The extra has perhaps been wrapped up in the centre of my argument so far. It is the journalism issue, namely, that ‑ ‑ ‑
GUMMOW J: How does that distinguish from the Indian case?
MR GLEESON: Your Honours have my submission on the Ukrainian matter. I will just conclude then on the Indian case.
KIRBY J: You latch onto the statement that he could go into the construction industry and give up his journalism, as he has done in Australia. You say that added a second modification that the Tribunal was envisaging, not only that he would go to a different district but that he would change his occupation.
CALLINAN J: It would fail a reasonableness test too, I suppose.
MR GLEESON: Yes. As we have put the alternative ground of appeal, if reasonableness is somehow the test, the failure to address the fundamental issue here, namely, where is it that he is expected to go, is it the assumption that he will not work as a journalist there and therefore express his opinion, as seems to be the assumption? Is the assumption he will conversely find this work in the construction industry which is not identified? Then a failure to assess whether those factors would mean that a refusal by him to relocate passes the reasonableness test. So that is the second way that one is put. Your Honours, briefly in the matter for ‑ ‑ ‑
GUMMOW J: You need to tell us in relation to the other matter where it is in its reasons that the Tribunal committed jurisdictional error.
MR GLEESON: Yes, your Honour.
GUMMOW J: At the moment I just have the idea you are not so confident on this one.
MR GLEESON: Your Honour has always been able to see through my strengths and weaknesses.
GUMMOW J: Not always at all, but just show us, if you would, where we see the jurisdictional error?
MR GLEESON: I can say this to the Court, I think in the notice of appeal we had sought to identify an additional ground for the Indian appellant and we are not pressing it as an additional ground.
GUMMOW J: Which one is that? I am looking at page 132. That is the notice of appeal.
MR GLEESON: It is paragraph 3(d). It is not pressed.
GUMMOW J: Not pressed, thank you.
MR GLEESON: In terms of the reasoning structure, this decision starts the same way on page 4 by setting out the four elements to the first limb and then identifies the second limb separately on page 5. It then goes to the evidence, again in two stages. The written evidence is on page 5 at about line 30 to page 6 at line 32. In terms of what was being asserted by the claimant we see at line 40 he claimed that the two opposing parties, the DMK and another party, had killed his brother.
GUMMOW J: What page are you reading from?
MR GLEESON: Page 5 at line 40.
GUMMOW J: Thank you.
MR GLEESON: The DMK, he said, had killed his brother. The DMK seems to be identified on the top of page 10 as one of the two main parties with power in Tamil Nadu. Returning to page 5, his next claim was at line 43, that he got involved in union activities at the mill and became a leader. He asserted that he had “found ‘mismanagement in the company’”. As the union leader he took action against management. That is over the page. At line 10 he claimed his life was in danger by friends of the company management. He joined the Communist Party. Rowdies attacked them again. Then at line 18 he claimed that he had organised demonstration procession against the Indian Federal State Government demanding equal rights. He claimed the police had arrested him and others, detained for 30 days in the Communist Party office and the political party and the police attacked him. He was warned not to get involved in political activities. He moved to Madras, chased in Madras. The police scrutinised him every day. He did not get any job in Madras.
KIRBY J: Was there any consideration in this case of the fact that he had access ultimately to the independent courts of India? I mean, the Madras High Court, as it is still called, is one of the great presidency courts of India and it is as old as the Supreme Court of New South Wales. In fact, it is older. I just find it very hard to conceive of this man not having the protection ultimately of the institutions of India.
MR GLEESON: The answer to your Honour’s question is no, there was not.
KIRBY J: So they only concentrated on this relocation theory?
MR GLEESON: It is an example of the point that having up that case to the extent there was available country information which one would expect the Minister would have on whether these claims were sustained or whether he had proper legal rights, none of that country information was injected into the process.
KIRBY J: He just jumped straight to the relocation theory.
MR GLEESON: Yes. What seems to have happened is that after his written material was cited we then see on page 6, line 40 he gave oral evidence which I think is largely consistent with his written evidence.
GUMMOW J: Where does it say he is a Tamil, or is that just assumed because he was born in Tamil Nadu? Can we assume Tamil ethnicity?
MR GLEESON: I will just check that, your Honour.
GUMMOW J: It says on page 5, line 30, he was born there.
MR GLEESON: It seems to be implicit in the findings about language at the foot of page 10 over to page 11.
GUMMOW J: Thank you. Yes.
MR GLEESON: His oral evidence seems to be largely consistent with his written evidence and certainly the Tribunal member does not find a substantial discrepancy.
GUMMOW J: I see on page 7, line 40 he was, “produced before the District Court” and released on bail at one stage.
MR GLEESON: Yes. So his oral evidence continues through to page 8 and then at about line 30 the relocation option is put to him. You will not:
be targeted by the DMK or the owners of the mill if he were to relocate within India.
At the next line the Minister – sorry, your Honour?
KIRBY J: Where are you reading now?
MR GLEESON: Page 8, line 30. I am drawing attention to the next line which the Minister may rely upon:
Initially the applicant claimed –
when relocation was put to him –
that if someone had advised him of this prior to departing India he would not have departed.
He claimed there were 25 or 26 States he could have gone to. Then the country information moves to Kerala.
CALLINAN J: The Tribunal says, “For example, Kerala”. It is not making a finding that it had to be Kerala.
MR GLEESON: Yes, your Honour. Then the country information seems to be accessed for the purpose of “Are there other parts of India where the Communist Party is powerful and therefore they might look after you and/or you may not be pursued as vigorously as you would have been had you stayed in your home region?” He said at the top of page 9:
if his location in Kerala was suspected by ‘DMK rowdies . . . his family would be harassed to give away his location.
KIRBY J: This decision was given in October 2004, which is after S395.
MR GLEESON: Yes, your Honour. S395 is not cited at the top of page 4, paragraph 10 as the authorities which the Tribunal has considered.
KIRBY J: It did not get into the word processor by that time.
MR GLEESON: Khawar did and Applicant S did but not this case, that being the evidence and that being the very scant country information, none of it going to whether his claimed fears in the regions where he had lived were well founded. The findings commence on page 9 and the findings between lines 25 to 30 could be described as a partial acceptance that there may be something in his evidence but without addressing the substance of it – not rejecting it, not explaining what his fears were, what had happened to him, what was likely to happen if he returned to Tamil Nadu or Madras. Immediately the Tribunal member goes at line 30 to relocation. Interestingly, the applicant asserted at 38 that he could not relocate to Kerala because his family would be harassed to discover his location. The
Tribunal member put to him he thought he would not be much interest to the DMK once he left, and a finding is made at about 48:
I am satisfied that should the applicant return to eg Kerala, he would not continue to be targeted –
If I am wrong about that, the DMK do not have power in Kerala, the Communist Party does. Accordingly, if you reside in Kerala – this is line 20 – I am not satisfied your parents would be questioned. Then we see at 22 the critical way it is framed:
if the applicant relocated . . . he would not have a well founded fear –
not what will he do, what will it actually mean for this man and what would be the chance of persecution on that basis? His evidence seemed to have been “I wouldn’t relocate”.
The examination of “reasonableness” commences at the foot of that page and goes over the next page. I think it is fair to say, your Honours, now that reasonableness has become the test in the Tribunal it becomes a fairly slim examination of what is reasonable because with most people if they have been in Australia it is said you have managed to pick up a bit of language here, you have managed to pick up some sort of work here perhaps, QED, not unreasonable for you to relocate. So that one has moved a long way away from the question of well‑founded fear of persecution.
As with the other matter, the second limb does not get considered. There is no question put to the applicant as to what resort to external protection in Australia through the Indian diplomatic service would provide for him. So, your Honours, we put that second one squarely on, is there jurisdictional error in the erection of this rule? If there is, the rule has fundamentally underpinned the actual decision sufficient to constitute error. If your Honours please.
GUMMOW J: Thank you. Yes, Mr Gageler.
MR GAGELER: Your Honours, we put some effort into the written submissions and I do not wish to repeat the detail of anything that appears there. Can I start with three short points of our own, then move to address Mr Gleeson’s first four points and in doing so, your Honour, we need to explain, albeit relatively briefly, where we say relocation fits, first with the text of the Convention, next with the reasoning in S152 and then with the reasoning in S395. Then, your Honours, after that we propose to turn to the particular circumstances of the two cases before the Court, first the Indian case, then the Ukrainian case and we need to deal with the particular arguments that are presented in the Ukrainian case.
GUMMOW J: We are proposing to sit to 1 o’clock, Mr Gageler, if that indication is any help.
MR GAGELER: Your Honour, I think I can move fairly quickly.
GUMMOW J: I will not bank on it.
MR GAGELER: The introductory points. Point number one is that we do not contend for and there is no such thing as a freestanding relocation principle or, as Mr Gleeson puts it, a relocation rule. The so‑called relocation principle correctly used is, in our submission, nothing more than a label that is descriptive of the application of the Convention definition to a particular and commonly encountered class of case. That particular and commonly encountered class of case is where there is in the country of nationality a region where an applicant objectively, if returned, would face a real chance of persecution and one or more other regions within the same country where the applicant, if returned, would objectively face no real chance of persecution. That is the scenario that the relocation principle describes and speaks to.
HAYNE J: There is no variation in the factual hypothesis that is to underpin the examination of the two regions.
MR GAGELER: I am not sure what your Honour means by that.
HAYNE J: Namely, it is expected that what the applicant will do will not vary according to whether he or she goes to region one or to region two.
MR GAGELER: It is expected that the applicant will not face persecution in one region but the applicant ‑ ‑ ‑
HAYNE J: I understand that is the conclusion, but it is the factual hypotheses which underpin it which presently interest me. Is there any variation in the factual hypotheses underpinning the conclusion reached about region one and the conclusion reached about region two?
MR GAGELER: I think the answer is no, but as I am giving your Honour the answer I think I am not understanding exactly where your Honour is coming from.
HAYNE J: There is a backdoor there, Mr Gageler. I am sure you will step through it if you have to.
MR GAGELER: When we come to Ukraine your Honour may wish to press me on it and I will deal with it in the Ukrainian example.
GUMMOW J: There is a question of conduct of behaviour in one area but not in the other.
MR GAGELER: Yes. Let me come to that?
GUMMOW J: You say no modification of behaviour is postulated by this analysis you proffer?
MR GAGELER: The modification behaviour that is postulated is, and it is the only modification behaviour that is postulated, is movement, going from one region to the other.
GUMMOW J: And the presence or absence of persecution?
MR GAGELER: That is right, in the place to which the movement takes the person. The second point, your Honours, is that stripped to its essence, all that the relocation principle says or, we would say, describes, is this. If there is no practical reason why the applicant cannot locate in the region where there is objectively no real chance of persecution then the applicant falls outside the Convention definition. That is what it describes.
Now, why should that be so? I will develop this a little more in a moment, but in terms of the text of Article 1A(2) it is because in such a case where relocation to the region where there is objectively no real chance of persecution is practicable any subjective fear that the applicant may have of actually facing persecution on return to the country of nationality is not objectively well‑founded and it is impossible, in our respectful submission, to contemplate an objective test, as a well‑founded test is, without injecting into it some element of reasonableness and it is not the S395 element of reasonableness, and I will come to that.
That is the first reason, and it flows from that reason if one wishes to move to what is sometimes described as the second limb of Article 1A(2) that there is no sufficient reason for the applicant being unwilling to avail himself of the diplomatic or consular protection of that country of nationality entailing, as it does, the possibility of the applicant being sent back to the territory of that country of nationality. That is why it should be so within the text of the Constitution, but why it should be so within the terms of the objects of the Convention and without resort to any contestable theory of surrogate protection or of internal protection.
It is, in our submission, simply inconceivable that a state party committing by this Convention to provide within its own territory refuge from persecution, was committing to provide that refuge within its own territory to a person who could readily find refuge from persecution within the territory of that person’s own nationality. In this respect, it is unsurprising and, in our submission, telling that state practice, while it differs slightly in the detail of what is taken into account on the reasonableness criteria, is uniform in denying refugee status to a person for whom internal relocation is a practicable option, that is a practical alternative to external relocation, which is what is involved in granting refugee status under the Convention.
We have set out in our written submissions almost in tabular form what one finds in state practice and I do not wish to go to that. We have in our material the United States Code, to which your Honours have already been referred ‑ ‑ ‑
KIRBY J: We have gone to that. We have seen that.
MR GAGELER: Yes, I am not going to that. We included a document which set out the position up to 2000 in Europe. We became aware only yesterday of a recent European Council directive which now legislates for the European Union what is called the internal protection principle. Your Honours have been given that ‑ ‑ ‑
GUMMOW J: This is 29 April 2004 ‑ ‑ ‑
MR GAGELER: That is right.
GUMMOW J: Council Directive 2004/83/EC.
MR GAGELER: Yes. I do not want to go to the detail, but your Honours will note Article 8 deals with internal protection.
GUMMOW J: Article 8?
MR GAGELER: Article 8 – the pages are not numbered but your Honours will see what it says. Your Honours, the third point that we wish to make by way of introduction ‑ ‑ ‑
GUMMOW J: Just stopping there for a moment, what is the force in the municipal law of member states of this directive? It is on the minimum standards.
MR GAGELER: Yes, I believe it to be implemented by domestic legislation or to be required to be implemented by domestic legislation. I cannot tell your Honour precisely.
KIRBY J: We have said on many occasions that in this area it is highly desirable that international countries of refuge should, if possible, interpret the Convention in a consistent and compatible way.
MR GAGELER: Yes, of course.
KIRBY J: It does seem that S152 steps out of that interpretation. In that case I see that I indicated that I was willing to accept the view of the majority, but I did not pass on it. Was that actually stated in Khawar as well, that view of the second limb?
MR GAGELER: Yes, we see it in the judgment of Justices McHugh and Gummow in Khawar and we also see it in the judgment of Justice Gleeson in Khawar. So at least three members of the Court, as we see it, adopted the view which ultimately became the majority view in S152. Your Honours, we do not see the majority view in S152, to which I will come, as presenting any difficulty in reconciling the position of Australia with the position overseas. Indeed, there is some UNHCR commentary which brings the two views together and I will come to that in a moment.
Your Honours, the third point that I wanted to make by way of introduction is that while the language of reasonableness is used in this area, we say used extensively and entirely appropriately, when one looks to the detail of what in substance in each case is being addressed and assessed is really the practicality or, probably putting it better, the practicability of relocation for the particular individual given the particular circumstances of the particular individual. One sees that, and I do not ask your Honours to return to it, in Randhawa itself 52 FCR 347.
KIRBY J: Practicality seems a rather softer test than reasonableness and it is certainly softer than the English test of unduly harsh.
MR GAGELER: The English test does not come to unduly harsh we think, your Honour. The English test appears to us to be pretty much an adoption of the UNHCR guidelines. Within our book of materials your Honours have the UNHCR guidelines that begin at page 118.
GUMMOW J: Anyhow, England has to yield to Article 8 of this council directive.
KIRBY J: They have a lot of people claiming refugee status in the UK though.
MR GAGELER: Yes. I am not sure the council’s directive emerges at all.
GUMMOW J: They are in some sort of rudimentary federal system.
MR GAGELER: They are developing.
GUMMOW J: They do not get to vote for their directive.
HAYNE J: It is recital (38) which records the wish of the United Kingdom to take part in adoption and application.
MR GAGELER: Yes, I do not think one sees a reference to this directive in the decision in Januzi, I may be wrong.
GUMMOW J: No, I know.
MR GAGELER: We did not see it.
HAYNE J: That would be unseemly.
MR GAGELER: Your Honours, I wanted to refer you to the UNHCR guidelines, the July 2003 guidelines specifically on internal protection. They begin at page 118 of our book of accompanying material.
Your Honours will see at page 118 in the description of the status of this document, in the end of the first paragraph it is said that it seeks:
to consolidate appropriate standards and practice on this issue in light of recent developments in State practice.
Dealing purely with the question of reasonableness or the content of reasonableness, if your Honours turn to page 122 to 123, your Honours will see the heading, “The reasonableness analysis” at the bottom of page 122, and paragraph 23 in particular makes clear that the focus is on the particular individual and then some factors affecting the analysis of the particular circumstances of the particular individual your Honours will see articulated on the next page or two. Now, that approach is what we understand to be approach that was adopted in Januzi in the House of Lords [2006] 2 AC 426.
KIRBY J: Concentrating on the individual is entirely consistent with S395?
MR GAGELER: Yes, and, interestingly, within Januzi there was no dispute between the parties to that case as to the existence of the relocation principle. There was no dispute about the appropriateness of a test of reasonableness of relocation. The whole dispute was about the content of the concept of reasonableness. Your Honours see that in Lord Bingham’s speech at the bottom of page 440, the last line of page 440 and over to the top of page 441.
KIRBY J: The only problem, Mr Gageler, is that this reasonableness principle rule, call it what you like, seems to have taken on a line all of its own and to have lost its moorings in the actual language of the Convention and we in this country tend to be a little bit more textual.
MR GAGELER: We think not, your Honour. We see the test of reasonableness both in S152 and in the passage in Khawar where Justices McHugh and Gummow addressed the content of protection. We see the test of reasonableness in both of those places and all the relocation principle is doing is teasing out the content of reasonableness in a particular sort of factual scenario, the one that I described earlier.
CRENNAN J: I think in Randhawa Chief Justice Black used the language of a range of realities.
MR GAGELER: We see that as entirely consistent with the UNHCR Guidelines as endorsed in Januzi. So that was the issue in Januzi.
GUMMOW J: We have to be aware in reading Januzi that the claim for refugee status dated from 2002 so it preceded the council directive.
MR GAGELER: Thank you, your Honour, yes. The approach that was specifically adopted in Januzi was that which had emerged in the Court of Appeal judgment in E v Secretary of State. Your Honours see that at page 445 in the speech of Lord Phillips that is there set out.
KIRBY J: I think they call them opinions now.
MR GAGELER: Are they still delivered orally?
GUMMOW J: Anyhow, this says judgment.
KIRBY J: Anyway, you will stick to the past.
MR GAGELER: I will.
GUMMOW J: That is what it says, looking at page 445:
It was argued for the appellants in that case (see para 16 of the judgment of the court –
MR GAGELER: Yes. The judgment of the Court is then in paragraphs 23 and 24 and it is the approach in paragraphs 23 and 24 that gets accepted by the House of Lords in the present case that one sees at page 448, the first line of paragraph 20, and that is said by Lord Bingham to be consistent with the UNHCR Guidelines of July 2003 and he says valuable assistance is gained from them. So that is the content of reasonableness which has been accepted – the prevailing view of reasonableness as accepted internationally, in our respectful submission, entirely consistent with Randhawa where the point was put somewhat more cryptically.
Your Honours, can I then turn to the more conceptual questions, that is, looking to the text of Article 1A(2), looking to S152 and then looking to S395. Going to the text of Article 1A(2), although it is sometimes separated into two limbs, it really expresses in a case of unwillingness, as distinct from inability to avail of diplomatic protection, a central requirement that that unwillingness to avail of the diplomatic or consular protection of the country of nationality be causally connected to a well‑founded fear of persecution within that country of nationality.
If one goes back to Ward, and I am not going to take your Honours back to Ward; you have been referred to the relevant passages. If your Honours go to Khawar, which I will take you to very briefly, and if your Honours go to S152, they are all cases which proceed upon the basis that the assessment of a well‑founded fear involves an assessment to some extent of the reasonableness of action that may be taken to avoid the conduct that gives rise to that fear or to avoid the harm that arises from that conduct. All of those three cases, that is Ward ‑ ‑ ‑
GUMMOW J: Yes, Mr Gageler.
MR GAGELER: Yes, Ward, Khawar and S152 are cases where the persecution is by non‑state agents, that is, where the persecution is by persons other than agents of the central government of the country of nationality which the refugee applicant is unwilling to go to to avail himself of the diplomatic or consular protection of that country. A case of relocation, your Honours, is a very particular example of that scenario, that is, a relocation case, we think, probably by definition but certainly in the vast majority of cases necessarily involves a case where the persecution does not emanate from the central government of the state. The persecution emanates from elsewhere, be it from the role of entirely non‑state agents or from the role of regional or local government agents.
That point one sees made in the UNHCR Guidelines themselves. One sees it at page 121, paragraph 13 and one sees it also in the UNHCR’s commentary on Article 1 which we have extracted. It begins at page 261, the particular passage being at page 264, paragraph 13. The point is you are only going to get to that scenario where there is a real risk of persecution in one region but not a real risk of persecution in another region where the persecution does not emanate from the central government of a state.
So, what one very usefully draws from S152 in that broader context, your Honours, is what appears in S152 (2004) 222 CLR 1 at paragraph 19. What is said here, in our respectful submission, encompasses comfortably an internal relocation case. The immediate context, it is said, is that of a putative refugee who is outside the country of his nationality and who is unable or, owing to a fear of persecution, unwilling to avail himself of the protection of that country. As explained in Khawar, we accept that the term “protection” there refers to the diplomatic or consular protection extended abroad by a country to its nationals. We entirely accept that.
It is then pointed out two sentences further on that availing oneself of the protection of the country of nationality may result in being returned to that country. It is then said:
Where diplomatic or consular protection is available, a person such as the first respondent must show, not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness. As the Supreme Court of Canada put it in Attorney‑General (Can) v Ward, a claimant’s unreasonable refusal to seek the protection of his home authorities would not satisfy the requirements of Art 1A(2).
Putting that into the context of the evident purpose of the Convention, your Honours went on, paragraph 20, last line on page 8, to say:
Because it is the primary responsibility of the country of nationality to safeguard those rights and freedoms, the international responsibility has been described as a form of “surrogate protection”. “Protection” in that sense has a broader meaning than the narrower sense in which the term is used in Art 1A(2) but, so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Art 1A(2).
Relevantly, the concept is one does not turn to surrogate protection when the real thing, the protection of the country of nationality, is available. We read what your Honour Justice Kirby said at paragraphs 109 to 110 as being a preparedness to accept a similar analysis.
That is, in our respectful submission, entirely consistent with what your Honour Justice Gummow said with Justice McHugh in Khawar 210 CLR 1 and I just want to go to one passage. It is at paragraph 73. Now, our learned friends in their submissions in reply quote the first sentence, which we can fully accept. We draw your Honours’ attention to what follows from the first sentence at paragraph 23 where it was said:
The preferable position is that indicated in the above publication of the United Nations High Commissioner for Refugees in the passage -
and then your Honours will see the passage that follows, it is an extract from a footnote. It relies upon an analysis of Professor Fortin in an article which was unpublished at the time of the UNHCR document but which later became published. Your Honours referred to it in footnote (80) but it is an analysis which injects an element of reasonableness into the linkage between the fear of persecution and the unwillingness to avail oneself of the protection of the country of nationality.
It is, in our respectful submission, useful to look at that quotation from the UNHCR document in context. Your Honours see the document beginning at page 261 of our book of materials. The quotation is taken from page 282, footnote 81.
KIRBY J: Who is the author of this document?
MR GAGELER: This is the UNHCR itself, so it is no doubt the product of a committee.
GUMMOW J: At page 282 is the reference that was picked up in Khawar by us at paragraph 73, is it not?
MR GAGELER: In your Honour’s judgment with Justice McHugh in Khawar, yes. Back at footnote 75 on page 281 there is the reference to the Fortin article. We have given your Honours also the published version of the Fortin article.
GUMMOW J: We have it, yes.
MR GAGELER: It was Fortin, of course, who argued that “protection”, historically understood, meant diplomatic or consular protection. What your Honours will see at the very last page of the Fortin article ‑ ‑ ‑
GUMMOW J: Volume 12, page 548, the International Journal of Refugee Law.
MR GAGELER: Yes, I am sorry, I did not quite pick that up. What your Honours see really in the penultimate paragraph on the last page of that article is an early expression of the precise analysis that was used in the joint judgment in S152. I will not read it.
GUMMOW J: Which particular page?
MR GAGELER: Page 576, beginning at the second sentence after the quote through to the end of that paragraph.
GUMMOW J: Beginning “Considering”, is that right?
MR GAGELER: Yes, your Honour.
GUMMOW J: Thank you. Is that a convenient time, Mr Gageler?
MR GAGELER: Yes, your Honour.
GUMMOW J: We will adjourn until 2.00 pm.
AT 1.00 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GUMMOW J: Yes, Mr Gageler.
MR GAGELER: Can I take your Honours back to the UNHCR publication at page 261 of our book of accompany materials. My purpose here, your Honours, is to demonstrate that the Fortin analysis preferred by two judges of the Court in Khawar and, in effect, taken up by three judges of the Court in S152 is seen as an available, if not the preferred approach by the UNHCR and is seen as an available, if not the preferred approach in dealing with relocation.
At page 269, paragraph 35 under the heading, “Unable/Unwilling to avail of state protection” mentions in the first sentence that that has been the subject of recent debate. It then mentions the state protection theory. It then in the third sentence refers to the Fortin theory and indeed it is the Fortin paper, at that time unpublished, that is footnoted in footnote 75.
GUMMOW J: That suggests we went off the rails.
MR GAGELER: Entirely. In paragraph 36 it is said that there is:
jurisprudence that has attributed considerable importance in refugee status determination to the availability of state protection inside the country of origin, in line with the first view described above. This somewhat extended meaning may be, and has been, seen as an additional – though not necessary – argument in favour of the applicability of the Convention to those threatened by non‑state agents of persecution.
GUMMOW J: The jurisprudence is primarily – you track it back to footnote 74, Adan v The Secretary of State for the Home Department (1999) 1 AC 293.
MR GAGELER: That is right. It is saying that is not a necessary way of going. There is this other way of going. Then one has, at the end of that sentence, footnote 81. It is footnote 81 that your Honour, with Justice McHugh, in part extracted in Khawar. One then goes to paragraph 37 where it says:
It has been suggested above that the internal protection element is best considered and determined as an element of well‑foundedness of fear.
Then there is another sentence which although is not attributed to Fortin, one does not find it in the Fortin paper, it is attributed to another unpublished author, is really a restatement, an application of the Fortin‑type analysis, perhaps many more words than needed to be used and that appear in S152 but, nevertheless, a statement of the same approach. It is then said after that ‑ ‑ ‑
GUMMOW J: What is the date of this document, Mr Gageler?
MR GAGELER: This is April 2001, but if your Honour also looks at page 118 which is the July 2003 document, the later document dealing specifically with the topic of internal relocation, your Honour will see, at page 119, paragraph 3, raising the conceptual issue and referring back in footnote 1 to the UNHCR document of April 2001, which is the one we are looking at.
GUMMOW J: Yes, I see, thank you.
MR GAGELER: So that is what is said generally about the Fortin analysis. I just wanted to show your Honours what is though said at page 270 just after what I have described as the restatement or application of the Fortin analysis, what he said:
These approaches –
that is the internal protection theory and the Fortin approach, it is said –
are, in effect, not contradictory. Whichever approach is adopted, it is important to recall that the definition comprises one holistic test of interrelated elements.
That is absolutely right. If one is focusing on what is said to be the second limb of the definition one is necessarily relating a well‑founded fear causally to unwillingness to avail oneself of external protection. So, your Honours, that is said generally.
KIRBY J: That says in another way what this Court has repeatedly said in other contexts and that is that you do not snap a little part out. We have been talking of the two limbs but it is a composite notion and has to be read as a whole.
MR GAGELER: Exactly, the language of a holistic test is an appropriate description of it. If your Honours then go back in the same document to page 264, this is under the heading, “Well-Founded Fear” that one sees at the bottom of the previous page.
KIRBY J: What page are you on now?
MR GAGELER: I am referring your Honours to the bottom of page 263, simply for the heading, and then going to page 264. It is said, in paragraph 12:
One aspect of the well-founded fear element which has given rise to particular problems in recent years is that of determining when a person ought reasonably to move to another part of the country and live safely there, rather than exercising his or her right to seek asylum from persecution outside his or her own country.
Then some of the problems are referred to. The last sentence of that paragraph says:
Other problems with its application relate to a flawed understanding of how the analysis relates to the refugee definition –
There is then footnote 27 and I will not take your Honours to that. The analysis in footnote 27 refers you to the analysis in paragraphs 35 through to 37, that is, the general analysis of inability or unwillingness to avail oneself of state protection.
HAYNE J: Just going on into paragraph 13, do you accept the second sentence at paragraph 13 cast in the absolute terms it is?
MR GAGELER: Yes, and, indeed, the third sentence cast in the almost absolute terms that it is, which is a point that I was seeking to make before. Your honours, can I go to S395 216 CLR and say this about it.
KIRBY J: Can I just get it clear in my mind that when you – I am just concerned at how one introduces this notion of reasonableness or practicability from the textual language of the Convention. How does one, as it were, take that leap?
MR GAGELER: One says that the assessment of whether a subjective fear is well‑founded is an objective assessment. One says that it is in the nature of that objective assessment that a yardstick of reasonableness is applied. One then says that where – and subject to S395 that I am going to – where there is a practicable alternative available in terms of relocation to an area in which there is no real chance of persecution within the country of nationality the subjective fear, if indeed it exists, of actually facing persecution upon return to the territory of the country of nationality is not well founded because, in broad terms, it is not reasonable.
KIRBY J: But how does one then reconcile that with the decision in S395?
MR GAGELER: That is what I am coming to. A complete answer to your Honour’s question, because I have only dealt with the well‑founded fear, is then to say, and really focusing on the way in which S152 looked at it, that means that there is not a sufficient justification for the person who is, by hypothesis, outside the country of nationality being unwilling to avail himself – the sexist language of the Convention – of diplomatic or consular protection of that country, entailing, as it does, the prospect of being returned to that country.
Now, S395, your Honours, can be read in different ways. In our respectful submission, one needs to read it with the understanding that it was not directed to the topic of relocation at all, that is, the issue of relocation simply did not arise. It is wrong, in our submission, to read what was said in S395 for the proposition that in assessing whether a fear is well founded the applicant can never be expected, acting reasonably, to take some action to avoid persecution.
I accept some of the things that were said can be interpreted that way. In our respectful submission, the case should not be so interpreted. In our submission, the key ‑ ‑ ‑
HAYNE J: The premise for that submission is, is it not, that relocation arises only in a case where the fear of persecution has a territorial or localised dimension?
MR GAGELER: I will put it slightly differently – where the real risk of persecution has that dimension.
HAYNE J: Has such a localised element.
MR GAGELER: Yes, entirely. Your Honour is going to test me with a Ukrainian case and I will come to that in due course.
HAYNE J: No, no.
MR GAGELER: Your Honour, I am ready for it. Your Honours, in our submission, the key to S395 lies in the recognition of two and perhaps three features of the conduct that was involved in that case, that was the conduct of living discreetly. Any of those three features are sufficient to distinguish that conduct from the conduct that is involved in expecting relocation reasonably to occur. The first feature is that the conduct, living discreetly, involved the modification or denial of an attribute or characteristic that gave rise to the Convention grouping in that case.
GUMMOW J: The discretion was a defensive response to a fear of persecution. That is the nub of it, I think.
MR GAGELER: Yes, that is the second point, that is that it was a manifestation of the ongoing threat of serious harm, two points. Third point, and this is a point that appears to be taken up in the English cases which have accepted S395, when one looked at the modification of conduct postulated in that case, that is, living discreetly, it was able to be seen as serious enough in terms of its intensity and duration, itself to amount to persecutory harm. That is the way in which the English Court of Appeal has explained S395. It may or may not be the preferred way of explaining it and, indeed ‑ ‑ ‑
GUMMOW J: What is that English case?
MR GAGELER: There are two of them but I will just take your Honours to the second of them, a case called J v Secretary of State for the Home Department [2006] EWCA Civ 1238. If your Honours look at paragraph 10, it refers to the slightly earlier cases of Z and SSHD. It extracts the statement from Lord Justice Simon Brown and it is then said, in paragraph 11:
That brief extract is particularly helpful because it brings together the principle articulated by the High Court of Australia and the underlying need for an applicant to establish that his case contains something “sufficiently significant in itself to place him in a situation of persecution”.
KIRBY J: I realise we are trying to get the principles right now, but just to concretise it in my mind, Mr Gleeson says, this is a form of telling the Ukrainian applicant, “Be discreet, don’t go back to the capital. Go to some outlying district where you avoid the governor”.
MR GAGELER: Yes.
KIRBY J: And, secondly, that, “Be discreet and deny your human right to free expression and to criticise the government”.
MR GAGELER: Your Honour, there may be a problem with the Ukrainian case. It is not a problem with the concept of relocation. There may be an issue - and I want to address this directly – about whether or not there was a real risk of persecution outside the particular region within the Ukraine that was not adequately addressed by the Tribunal. I accept that, but it is a problem with identifying the risk which to some extent involves understanding what the claim was that was made by the applicant in that case and the way in which the Tribunal addressed the claim and analysed the claim.
It is a problem, if it exists, I accept. of an S395 nature. If the Tribunal was saying, “This person outside the particular region will need to modify the behaviour that the person would otherwise engage in so as to avoid ongoing persecution within that other region”, if that is what the Tribunal was saying then the Tribunal is wrong and it committed a jurisdictional error of the kind referred to in S395, but it is not a problem with the relocation approach, it is a problem with identifying risk of persecution outside the particular territory.
So, your Honours, there are those three points of distinction between the conduct of relocation and the conduct considered in S395 and, as we have pointed out, the English approach is to seize upon that third point of distinction, that is to say that the – as we read them, they appear to say that what was important in S395 was that living discreetly was itself, in terms of its intensity and duration sufficient to be harm – to be a manifestation of the harm arising from persecution.
Your Honours, within Australia, certainly in the Full Court of the Federal Court, it has been the first of the points of distinction that has been seen to be significant. Your Honours were, I think, referred to NALZ 140 FCR 270, at least in passing. Can I ask your Honours to look at that. At 281, in paragraph 46 it is said:
Two factors must be borne in mind in considering whether the rationale in S395 applies equally to this proceeding. Firstly, an assumption that appears to underlie the approach of the majority in S395 is that, wherever the relevant conduct under consideration might occur in Bangladesh, the consequences would be the same. The possibility that, by relocating . . . did not arise -
which is absolutely factually correct. Then, the next sentence:
It has long been accepted that, if it is reasonable for an asylum seeker to relocate within his or her country of nationality and, by relocating, avoids the possibility of persecution, Australia will not owe protection obligations to such a person. Requiring an asylum seeker to relocate, in circumstances where it is reasonable to do so, does not involve the asylum seeker modifying beliefs or opinions or hiding membership of a particular social group ‑ ‑ ‑
KIRBY J: You can see why judges like to have this formula because it is a nice, familiar, concrete type of formula but I am just still concerned as to how it is linked to the language of the Convention. I mean, that is why we get different formulas. You have already put one up to us today, “Is it practicable?” and Lord Justice Woolf, as he was then, said – he used some other harder formula but ‑ ‑ ‑
MR GAGELER: It sounded harder, your Honour, but it was not. Your Honour might be thinking of Lord Bingham’s judgment in Januzi which, in effect, settled the position in the United Kingdom.
KIRBY J: Would it be unduly harsh to ask the person – I think Justice Woolf said it in a case and then it has picked up by the Court of Appeal and it is approved in Goodwin‑Gill’s latest edition or at least it is said to be the test that was applied at the time that edition was written.
MR GAGELER: The verbal formula varies a little. The approach of Lord Bingham, Januzi [2006] 2 AC at page 448D was really picking up the UNHCR guidelines. He said the approach is to ask:
“Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?”
But one cannot put undue weight on the words, “undue hardship” without reading them within the context of the guidelines, which I have already referred to, which give ‑ ‑ ‑
HAYNE J: All of them are judicial responses to particular facts attempting ultimately to give content, as I understand your argument, to the notion of “well founded”.
MR GAGELER: Exactly, and it is useful to have the content of that broad notion teased out in a very frequently encountered class of case. It leads to consistency in decision making, it is a broad ‑ ‑ ‑
HAYNE J: But not by the substitution of one formula which commands the field.
MR GAGELER: Absolutely.
HAYNE J: Ultimately, it is the Convention that commands the field.
MR GAGELER: It is, and what one is looking at is the principled and consistent application of the high level language of the Convention to a particular class of case, that is all.
KIRBY J: I can understand from the point of view of the Tribunal that to say, “Don’t use these other formulas, don’t refer to practical, don’t refer to reasonable, don’t refer to anything else, go back to well founded”, they would say that is at a level of generality that does not deal with this category of case.
MR GAGELER: It does not help me, as a practical decision‑maker, decide the facts of the case.
HAYNE J: But the considerations that intruded, for example, in the Ghanaian case where the choice confronting the claimant was a 15‑mile march through the jungle to an isolated village compared with living in Accra ‑ ‑ ‑
MR GAGELER: Your Honour is referring to the case decided by ‑ ‑ ‑
KIRBY J: Justice Nolan’s case.
HAYNE J: Justice Nolan’s case, the very early one.
MR GAGELER: It is 1985, a single judge ‑ ‑ ‑
HAYNE J: But the factual circumstances differ so radically ‑ ‑ ‑
MR GAGELER: Of course, they do.
HAYNE J: ‑ ‑ ‑ and evoke different linguistic responses.
MR GAGELER: Yes.
CALLINAN J: Does Article 33 have any relevance or assist?
MR GAGELER: It is not irrelevant. We do see it as assisting us. Of course, before you get to Article 33 you have to find a refugee but what Article 33 is concerned about is treating the country as a whole and it is a question of what happens to the refugee at the border. It is obviously a very different question if once put at the border the refugee can go into one area where there is no real risk of persecution as distinct from facing persecution in the entirety of the territory.
That is I think what I wanted to say about S395. Can I come then to the particular circumstances for the two cases and deal with the easy one first, the Indian one, SZFDV, the case of the gentleman from Tamil Nadu whose claim was to fear death or physical violence for reasons of having been an active member of the Communist Party. He said he feared that treatment from either the owners of a particular spinning mill where he had been a union leader or from the political party, the DMK, where he said the owners were members or had influence. The Tribunal decision at page 8 of the appeal book, at line 10 accepted that it was:
plausible the mill owners, who were allegedly members of the DMK, had used their influence to cause problems for the applicant; and notwithstanding the DMK is not currently in power in Tamil Nadu . . . That said I did not think it plausible the DMK or the mill owners would continue to target him should he relocate within India.
That topic was then raised at line 30:
At the Tribunal hearing I put to the applicant that I did not think it plausible he would continue to be targeted by the DMK or the owners of the mill if he were to relocate within India. Initially the applicant claimed that if someone had advised him of this prior to departing India he would not have departed.
That may have been said rhetorically. It is not clear:
The applicant claimed there was ‘about 25 or 26 states in India and [he] could have gone to any of them. . .
I put to the applicant the current main opposition alliance in the Indian state of Kerala, for instance, includes the Communist Party of India –
Kerala was chosen because it is the state next to Tamil Nadu and shares a very long border with Tamil ‑ ‑ ‑
KIRBY J: One of them.
MR GAGELER: It is to the west.
KIRBY J: It is only one of the states. It is to the west.
MR GAGELER: Yes, of course.
KIRBY J: Over a very, very high range of mountains, the Nilgiri. Justice Gummow might know all about central Europe but I know all about India.
MR GAGELER: Yes. Your Honour, it may well have been said, “I would have to get across a high range of mountains and I could not possibly do that” but look at what appears right at the bottom of page 8:
Accordingly, I put to the applicant that even if the applicant was of any continuing interest to his former employer the mill owner, or to the DMK, I did not think they would have the power to target him for harm in a state where the Communist Party . . . had significant power. The applicant claimed that if his location in Kerala was suspected by ‘DMK rowdies or [his] former employer’ his family would be harassed –
In response to the possibility of relocation, that was all that the applicant in this case raised for the consideration of the Tribunal. That possibility of the family being harassed was then considered by the Tribunal, at the bottom of page 9 and the top of page 10, and said to be implausible, implausible on two bases. One is, the Tribunal just did not think it would be plausible that once this gentleman was outside Tamil Nadu that these people would be interested in him at all and at the top of page 10 about line 12 the Tribunal did:
not think it plausible the mill owners or the DMK would have the capacity to cause the applicant problems in Kerala –
in any event, and in that circumstance it would be most unlikely that they would be interested in pursuing his family to know his whereabouts.
KIRBY J: Is there not some force in Mr Gleeson’s criticism that this is the very vice of this approach here, at least applied in this way, that instead of concentrating on whether he had a well‑founded fear and whether he could have protection from the independent institutions of India the Tribunal leapt to this hypothesis of its own about his relocating and did not ever come to a conclusion as to whether he would, in fact, relocate if he was sent back to India and that this is really what the Full Court of the Federal Court had authorised the Tribunal to do?
I must say to you, sitting as we do in panels looking at a lot of these cases, it does seem to be a very common thing. Instead of concentrating on whether the particular applicant has a well‑founded fear there is this jump in almost every Indian case, well, they can go somewhere else in India and that really is detouring from the real issue.
MR GAGELER: Your Honour, in a sense, it is all directed to the ultimate issue that it has to be broken down by reference to the circumstances of the case and the circumstance of the case was a localised objective chance of persecution from mill owners and from a particular political party. That was the finding that one sees at the top of page 8.
KIRBY J: Yes, but the real answer to that, Mr Gageler, is there may be ruffians and so on around, but there are independent courts and other institutions in India which can protect, or at least that is the way to analyse it, not to say, “Well, you’ve got your persecution down there in Chennai, move to Hyderabad or move to Delhi”.
MR GAGELER: Your Honour, it could have been analysed in other ways. It may have been said that, “What you fear is not persecution at all because the state can protect you even in Tamil Nadu”. It may well have been said that.
KIRBY J: The problem is this is being pulled out as a rabbit out of a hat in virtually every case in India, or in lots of them.
MR GAGELER: Your Honour, it is another way Mr Gleeson’s client might have lost. He really cannot complain ‑ ‑ ‑
KIRBY J: He might well have lost. If I was sitting as a tribunal of fact then I would have real doubts about this based on the well‑founded fear in orthodox reasoning, but instead, without focusing on him, they conceive of this theory, they put it to him and he is puzzled and says, “I could go to 25 states in India”, and there is no real issue joined and they do not really focus as S395 tells them to do on what would this man do.
MR GAGELER: Your Honour, let me go back to S395. We do say that in relocation cases one does not simply predict the behaviour of this individual. One asks what can this individual reasonably do? Can this individual reasonably act to relocate? If so, then other things necessary for the application of the principle to exist, then the person is not a refugee even if the person chooses, or might choose, upon return to the country of nationality to live in the original location and live with the fear of persecution in that place. So we do say this is different from S395 in that respect. I want to make that quite clear. The question then becomes, if I am right about S395, then I may have answered your Honour’s question, but applying the test of reasonableness to the circumstance – I will go back one step.
Really, the analysis engaged in by the Tribunal in response to the regionally localised persecution said to be feared by this applicant was, in our respectful submission, entirely appropriate in getting to the ultimate question of whether there was, in the circumstances of the case, a well‑founded fear of persecution sufficient to say that this person from Tamil Nadu was justified in not availing himself of the protection of India and that is all that is involved in this analysis.
Your Honours’ attention was not drawn to the careful consideration given by the Tribunal in the last five or six paragraphs of the judgment. After rejecting the one reason the applicant said he could not relocate to a place like Kerala, the Tribunal went on, very carefully, as best it could, to consider whether there might be some other reason why the applicant could not relocate, some reason not raised by the applicant at all and those potential factors are considered and dismissed over four or five paragraphs. So, in our submission, there is no error in that case.
Can I then come to the slightly harder case of the Ukrainian national. If there is error, it is not an error in the application of what can be labelled “the relocation principle”. It is an error in failing to recognise and potentially assess a basis upon which persecution may occur outside the particular region of Chernovtsi.
Your Honours were taken, with some care, through the reasons of the Tribunal. Can I pick them up at page 20, paragraph 66 where some key elements of the applicant’s claim are accepted by the Tribunal. The key elements, to summarise them, were that in Chernovtsi he had written articles critical of the regional government as a result of which he was singled out for threats at the highest levels of the regional government and for intimidation by the local police.
Paragraphs 67 and 68, to which attention has been drawn, appear within the context of the reasoning of the Tribunal as background evidence that make the acceptance by the Tribunal of those key elements of the applicant’s claim more easy, that is 67 and 68 are part of the justification for the Tribunal accepting those elements of the applicant’s claim, “Yes, this sort of thing can happen in the Ukraine and there are examples of it in the country information”. There was a further element ‑ ‑ ‑
KIRBY J: The problem for you is that the acceptance is that the government, ie, the government of Ukraine, does not respect these rights and inferentially that is throughout Ukraine.
MR GAGELER: Well, that is a big inference, your Honour. I will come to that in a moment. But there is another element of the applicant’s claim that, very importantly, was not accepted, indeed, firmly rejected by the Tribunal and that is that the applicant had claimed a fear of being arrested by the Ukrainian Security Service, sometimes referred to as a USB and sometimes referred to as the SBU, National Security Service. He claimed that to have arisen out of some things that were said to him by the local police in a particular incident on 19 May 2001. That is referred to at paragraph 72. That is very, very firmly rejected by the Tribunal over the next few paragraphs and what the Tribunal says, page 23, line 10:
I do not accept that the Applicant was of any adverse interest to the SBU or any other Ukrainian authorities –
The Tribunal goes on about line 18 and says:
This suggests to me that the Applicant is not genuinely concerned about being arrested and charged by the SBU.
Indeed, about line 25, paragraph 77 the suggestion is that this whole thing about fearing the central authority appears to be a recent invention. So, localised persecution entirely accepted; a generalised fear of persecution from Ukrainian authorities firmly rejected. What one then has as the only real risk of persecution identified by the Tribunal arising from the way in which the Tribunal interpreted the applicant as putting its case is that identified in paragraph 69 and paragraph 70, that is, a risk of being targeted by the regional government or regional officials in Chernovtsky.
That being the claim that the Tribunal saw itself as dealing with, it then asked, well, outside Chernovtsky, outside that region, is there any real risk of the Chernovtsky Government targeting this individual? Answer to that, paragraph 80, no, there is no real risk of harm from the Chernovtsky Government for this individual outside the Chernovtsky region. That is what was held. Then in paragraph 79 what the Tribunal is addressing is the reasonableness of expecting this individual to be able to locate himself somewhere in the Ukraine outside Chernovtsky.
Read fairly, all that the Tribunal is saying is that there does not appear to be any reason why the applicant could not set himself up somewhere else in the Ukraine. He set himself up comfortably in Australia. No reason he could not set himself up somewhere else in the Ukraine.
That is said against the background of the question of relocation being put to the applicant, page 12, lines 10 to 20. The Tribunal says, this is towards the end of the hearing:
At this point I raised with the Applicant the possibility of his relocating elsewhere in Ukraine. The Applicant said there were problems for him relocating. He had been born and raised and spent all his life in Chernovitsi and when he went back he would think about this town. He would have difficulty adjusting.
I put to the Applicant that he had adapted to Australia quite well and I could not see why he could not adapt elsewhere in Ukraine. The Applicant said that in Australia he was far away from the same region. It would be very difficult for him elsewhere in Ukraine.
That is all that he said. Now, if he was saying, “Well, if I relocated elsewhere in the Ukraine I would not be able to work as a journalist and I would not be able to work as a journalist because I would fear persecution from other authorities”, not the Chernovtsi people, but other authorities. if that was the claim he was making, then there would be an S395 type error. We fully accept that, but that was simply not what he said.
HAYNE J: What do you make of paragraph 52 in the fourth sentence?
MR GAGELER: I think it might appear somewhere else. That was the Tribunal flirting with error, your Honour.
HAYNE J: Flirting but never embracing.
MR GAGELER: Never embracing. Your Honour, can I put it this way. You can read that sentence and you can put it together with the sentence that your Honour identified at the top of page 24 and it is not very hard to get to error. Now, your Honour is sitting at the third tier of the appellate process and, your Honours, this precise question has been considered really quite thoroughly at two other tiers and, particularly, can I refer your Honours to the very full discussion of this argument. It is put in a very slightly different way, but very well put by Mr Lloyd to the magistrate.
Your Honours see it at the bottom of page 49 continuing over to page 53, and can I just pick out – and I do not want to read it because, in our respectful submission, it is the preferable analysis of what the Tribunal was doing. Even if your Honours were not to take that view, if your Honours were assessing it for the first time, given that your Honours are sitting on appeal your Honours would not disturb the findings of fact made by the magistrate accepted by the Federal Court.
HAYNE J: Sorry, what finding of fact made by the magistrate?
MR GAGELER: Two things, your Honour, page 51 concentrating on that sentence at the top of page 24, page 51, line 43:
In context, and on a plain reading of what the Tribunal has said, the Tribunal’s wording leaves open the possibility, even if remote, that the applicant would or could (“may not”) obtain work as a journalist.
HAYNE J: You say that is a finding of fact, do you?
MR GAGELER: It is a reading of the words, yes. I do say that, your Honour, yes. It is a finding of what the Tribunal is to be construed as having said. It is saying there is a construction of a contract or the patent.
KIRBY J: In a sense, this was a case where the Tribunal was rather more candid than the other Tribunal in the Indian case because they really went through it all and came to a conclusion that there was persecution. They did not, as it were, jump straight to this relocation issue and then they said that can be avoided if he goes somewhere else and probably if he changes his occupation and that is getting very close to Applicant S395 of 2000.
MR GAGELER: Yes, I accept that. It really turns on what the claim was that was made.
KIRBY J: Unless one takes a view that sexual orientation is a different type of thing than freedom of expression but I do not know that one can do that.
MR GAGELER: I would not say that, no.Your Honour, we are prepared to accept that there is a possibility. Let me put it really quite precisely, if the Tribunal had followed through with the thought that one sees at page 11, line 29, followed through with that thought that your Honour Justice Hayne highlighted, then the Tribunal would have erred and it would have been an S395 error. I do not resile from that. It is really a question of, what has the Tribunal actually done and there the learned magistrate made some findings which, in our respectful submission, should not be disturbed including findings about the claim that was actually made.
Your Honours ought note the bottom of page 52, top of page 53. Interestingly, the applicant well represented chose not to put the transcript of the proceedings before the Tribunal into evidence and what is said at the bottom of page 52, last sentence, by the learned magistrate:
From the material before me, it would require a number of a lengthening steps to tie the applicant’s claim that he would always be a journalist, which was put in the context of his return to his local region, to the applicant moving to another region, then starting to criticise either the local or the national authorities in this other region of Ukraine . . . which in turn would result in persecution by either local or national authorities in this other region. The applicant has clearly not articulated his claims in this way, nor is there sufficient to say that these possibilities arise from the circumstances in the applicant’s case –
et cetera. That finding, in our respectful submission, ought not be disturbed. If the Court pleases, those are our submissions.
GUMMOW J: Yes, Thank you, Mr Gageler. Yes, Mr Gleeson.
MR GLEESON: Your Honours, there are perhaps four points. Can I deal first with this last question of the alleged finding of fact. The magistrate did not attend to the evidence which was set out in paragraph 32 on page 8 that the applicant had actively sought work as a journalist outside Chernovtsky.
CALLINAN J: Mr Gleeson, the magistrate is looking at whether there has been jurisdictional error or not though, is he not?
MR GLEESON: Yes, but to the extent Mr Gageler’s ‑ ‑ ‑
GUMMOW J: I was going to ask you about that. What was the jurisdictional basis of the Federal Magistrates Court?
CALLINAN J: It is not a full merits review. He does not making findings of fact though.
MR GLEESON: It was ‑ ‑ ‑
GUMMOW J: Which section?
MR GLEESON: Ultimately section 483A of the Migration Act, picking up section 39B of the Judiciary Act.
GUMMOW J: Is that true in both matters?
MR GLEESON: Yes.
GUMMOW J: Do you agree with that, Mr Gageler?
MR GAGELER: Yes, your Honour.
GUMMOW J: Thank you.
MR GLEESON: Your Honour, the point was only to the extent it was suggested there is a finding ‑ ‑ ‑
CALLINAN J: I think that what Mr Gageler is saying is on the proper reading of the Tribunal’s decision – I know he did say finding of fact but I would take it that that was what was intended.
MR GLEESON: Your Honour, taking it on that basis I would simply refer to the critical paragraphs which are 28, 32 and 52 on the basis of which it was quite squarely raised that he intended and was seeking to work as a journalist expressing his political opinion beyond simply the region in which he had been targeted.
CALLINAN J: I understand the construction you put on it.
MR GLEESON: If your Honours please, that is the first matter. Your Honours, the second matter of more substance is that the issue where we are clearly joined is that the Minister contends that whereas ordinarily S395 requires close attention to what this applicant will actually do, if returned, there is an exception when one is dealing with a suggested relocation option where the Tribunal simply does not make findings of where the applicant will in fact live, as between two or more places, how the applicant will in fact seek to live in those various places and what modifications of behaviour will be necessary as between the various places in order for the applicant to live.
The Minister is squarely contending once relocation is propounded you do not ask those questions, you just look a very high level of generality at what the Minister describes as a common case and we submit that the departure from those questions is where the error creeps in.
CALLINAN J: It might involve a very intensive geopolitical inquisition in every case where relocation was a possibility. That may be the consequence, but it might well do that.
MR GLEESON: It may expose that some of the suggested safe havens which are being conveniently adopted in some of these cases really do not meet a proper standard and we see that most clearly in the Ukrainian case where we are still not told where it is in the Ukraine he is expected to reasonably live other than to be told it is not the place he was living in. In the case of the Indian applicant we are not told, squarely, that he is expected to live in Kerala. We are told on four occasions, eg, Kerala, and there is no clear analysis of how he would live in Kerala or whether indeed he would live there at all.
That is the central point upon which the parties are apart. Where relocation is suggested can the Tribunal avoid conducting that factual exercise and the Minister does not resile from saying once relocation is suggested you just do not ask the question.
Your Honours have our submissions on that issue. Your Honours, the third matter I wanted to mention was the Minister has squarely said that the textual basis for relocation is in the second limb. The Minister has said that it is – they also say they want to be holistic but, when pressed, the Minister says, “It is not owing to a well‑founded fear of persecution that you are unwillingly to avail yourself of the external protection”. That is the textual way it is put. We wish to just recapitulate, firstly, that in neither of these two cases was that the way the Tribunal approached the decisions. The second limb did not get a mention.
In neither case were there any findings of fact on what recourse to the external protection would have produced in these cases. Perhaps more fundamentally than either of those, the concept of well‑founded fear appears to be a singular concept in the two‑part definition. The second limb speaks of such well-founded fear of persecution as has been identified in the first limb. So ultimately, if the Minister’s logic were acceptable and prevailed, it really is coming back to saying, for the purpose of the whole of the definition, you do not have a well-founded fear of persecution if you fail our simple two‑stage test, which brings us back to the S395 problem with that two‑stage test.
Your Honour, the fourth matter is, when Mr Gageler sought to anchor his principle in S152 and Ward and the Fortin Article, we would submit that the problem with that basis was that Fortin was not speaking about today’s problem. S152 was not here speaking about today’s problem and a particular elision occurred which, I think, to my researchers is a new proposition that has been put in these matters if there is any new proposition to be found. Mr Gageler today divided up persecution cases into two broad categories, the second with two subcategories.
The two broad categories are persecution by what he called central state authorities and persecution by others. Then he divided the others up into persecution by local or regional authorities and persecution by non‑state agents. He has done that for a reason which is to seek to suggest
that because we are in box 2A, then it is much easier to conclude relocation is reasonable, et cetera. We would simply submit that that type of division is really of itself unhelpful in resolving these problems.
Your Honour, the final matter simply concerned the Indian applicant. Mr Gageler said on the facts that we had paid insufficient attention to the careful findings in the last four or five paragraphs. We would only note that in those paragraphs it appears that findings were made that there were no language, employment, family or residence difficulties for the second applicant.
KIRBY J: Where is that?
MR GLEESON: That is on page 11, particularly at line 12, and we would submit that that is part of the very difficulty of this process that when it is simply put to him in general terms, “Could you live somewhere else, for instance, Kerala?”, without even identifying where, there has been no exploration with this second applicant of his employment position in this new place, his residence, his family contact, et cetera, and all of that has come from jumping too quickly into the question of relocation. Unless your Honours have questions that is what we wish to put.
GUMMOW J: Yes, thank you, Mr Gleeson. The Court is indebted to counsel for their assistance in these difficult matters. We will reserve our decision and adjourn until 10.15 am on Tuesday next, 22 May.
AT 3.01 PM THE MATTER WAS ADJOURNED
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