Minister for Immigration and Border Protection v SZSCA (“SZSCA”)  HCA 45, a case decided yesterday in the High Court of Australia, highlights the far-reaching results for refugees (and for that matter Australia’s human rights record) if the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 currently before the Australian Parliament is enacted. Following is an edited summary of the facts from the Court’s judgement.
The respondent is a citizen of Afghanistan, of Hazara ethnicity, from the Jaghori district in the Ghazni province. He arrived in Australia by boat on 21 February 2012 and subsequently applied for a protection visa.
The respondent said that he and his immediate family have lived in Kabul since 2007 and that he has worked as a self-employed truck driver since that time. Prior to that, he worked in Jaghori manufacturing jewellery. His work as a truck driver required him to drive between Kabul, Ghazni and Jaghori. From about January 2011, he began to specialise in the transportation of construction materials between Kabul and Jaghori because it provided him with a higher income.
Around late January 2011, the respondent was en route to Jaghori when he was stopped by the Taliban, who warned him not to carry construction and building materials. The Taliban considered that, by transporting such materials, he was acting for the government or for foreign organisations. He was released because he said that he was carrying the materials for a shopkeeper and, in his view, because this particular group was “more merciful than other Taliban”. Thereafter, he took measures to avoid Taliban checkpoints, although he continued to carry construction materials.
In about November 2011, another Hazara truck driver showed the respondent a letter he had been given by the Taliban. The Taliban letter, a translated copy of which was produced to the Tribunal, was headed “Islamic Emirate of Afghanistan, Ghazni Province, Khogyani District”. It alleged that the respondent was “assisting and cooperating with government and foreign organisations in the transportation of logistical and construction materials from Ghazni city to Jaghori and to Malestan district.” It called upon “local council people to perform their Islamic duty … to get rid of this criminal, infidel person.” It told them “to take firm action as soon as possible to get rid of this apostate, criminal person on the road from Qarabagh and Janda areas.”
The respondent said that he decided then to leave Afghanistan and did so 10 days later.
The Refugee Review Tribunal reasoned that, although SZSCA might have a well-founded fear of persecution based on his imputed political opinion in most parts of Afghanistan, he could live safely in that country as long as he confined himself to metropolitan Kabul. Accordingly, he was not a refugee.
On SZSCA’s application to review the Tribunal’s decision, the Federal Circuit Court of Australia (Judge Nicholls) ordered that the decision be quashed and that the matter be remitted for determination according to law. A majority of a Full Court of the Federal Court of Australia (Robertson and Griffiths JJ, Flick J dissenting) dismissed an appeal from the Federal Circuit Court’s decision.
Both Nicholls J and the majority in the Full Court held that the RRT had made an error of law in its approach to SZSCA’s application.
Professor Hathaway’s analysis
The Full Court’s approach is discussed in a recent article by Canadian refugee law guru Professor James Hathaway:
The majority of the Full Federal Court of Australia agreed with the applicant. Understanding the High Court of Australia to have ruled in S395 that a decision-maker “cannot require an asylum seeker to behave in a particular manner” – the only relevant question being “whether an asylum seeker would not in fact behave in a particular matter upon his or her return” – it was held that there was a duty to grant refugee status given the applicant’s unwillingness to resume his work as a jeweler in Kabul.
This decision continues a no doubt well-meaning, but analytically flawed, approach.
By way of background, leading courts have been clear in rejecting the notion that there is any duty on the part of an individual to “be discreet” – more accurately, to conceal or disguise a Convention attribute (race, religion, nationality, social group, political opinion) in order to be safe. The Australian High Court’s trail-blazing decision in S395 determined that “[i]f an applicant holds political or religious beliefs that are not favoured . . . it is not answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question.” …
But it is a mistake in my view to move from this clearly correct position to contend that there can never be an expectation of a shift in behavior that would avert a risk of being persecuted. As Jason Pobjoy and I argued in Queer Cases Make Bad Law not every action vaguely associated with a protected attribute can reasonably be said to give rise to a risk “for reasons of” that attribute. The UK Supreme Court’s suggestion in HJ/HT that a duty to recognize refugee status might arise on grounds of sexual orientation if the risk stemmed solely from drinking a multicolored cocktail or attending a Kylie concert was, in my view, as substantively wrong as it was predicated on stereotype. While it will sometimes be challenging to distinguish those actions that bespeak a protected characteristic from those that do not, the unequivocal requirement that refugee status be recognized only where there is a causal connection between risk and one of the five Convention grounds requires that judges rise to that challenge. …
The dissenting judgment in the Australian Full Federal Court’s SZSCA decision recognized the importance of engaging this issue, and showed the special salience of the need to draw principled lines where risk arises from an imputed, rather than an actual, characteristic. Even as he unequivocally affirmed that there can be no duty to conceal one’s race, religion, nationality, social group or political opinion, Justice Flick rightly insisted some forms of behavior are not protected by the Refugee Convention.
Truck-driving, Flick J reasoned, was not behaviour that was intimately associated with the characteristic that made SZSCA a refugee, and therefore there was no reason why one should not expect him to modify this behaviour by not engaging in it (at least not outside Kabul).
High Court’s decision
These sorts of questions arise in refugee cases in two distinct situations:
- When it is argued (by the Minister) that an applicant could easily avoid persecution by modifying their behaviour e.g. the facetious example of a gay person avoiding being identified as gay by refraining from attending Kylie Minogue concerts;
- When it is argued that the applicant could avoid persecution by relocating himself to a safe part of the country from which he has fled (“the internal relocation principle”).
The High Court neatly avoided addressing the question (discussed by Hathaway and Flick J) of which sorts of behaviour applicants could reasonably be expected to change and which ones they shouldn’t, by holding that the RRT had simply addressed itself to the wrong question:
The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.
Accordingly the Minister’s appeal was dismissed, and SZSCA may (or may not) get to stay in Australia depending on the decision of a reconstituted RRT. In dissent, Gageler J held that the RRT had in fact adequately considered the question of whether it was reasonable to expect SZSCA to confine himself to Kabul, and therefore would have allowed the Minister’s appeal. All very interesting …
But it all may be pointless
There is currently a Bill before the Australian Parliament which if enacted would make sweeping changes to refugee law in this country. It is the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Among other things, the Bill would:
- facilitate the Abbott government’s asylum seeker boat turnback policy by allowing “maritime turnbacks” despite the fact that they might violate Australia’s international law obligations, including the fundamental obligation not to put a person at risk of being returned (“refouled”) to their home country where they face persecution;
- re-enact the Coalition’s commitment to Temporary Protection Visas for refugees; and
- provide legislative underpinning for a “fast track” assessment process involving very brief questioning of an applicant’s claim and severely restricted (or even non-existent) right to independent merits review.
However, arguably the most far-reaching aspect of the Bill is Schedule 5 with the distinctly Orwellian title “Clarifying Australia’s international law obligations”. What the Bill actually does is remove just about all references to the Refugee Convention from the Migration Act and insert a completely new regime defining what refugees are and what obligations are owed to them by this country, in terms that are much more congenial to a government wanting to exclude as many asylum seekers as possible from reaching Australia or being allowed to stay here.
The proposed new provision that is of most relevance to SZSCA is explained in the Bills Digest prepared by the Parliamentary Library:
The proposed definition of ‘well-founded fear’ in proposed section 5J significantly changes this essential element of the Convention definition, in that it considerably broadens the basis upon which asylum seekers can be deemed not to have a well-founded fear of persecution and thus be found ineligible for protection. For example, an asylum seeker will be deemed not to have a well-founded fear if they can relocate to another part of the country. It will no longer be a requirement that the decision-maker assess whether it is reasonable for them to do so.
In other words, if a case just like that of SZSCA arises after this Bill becomes law, the applicant would be held not to be a refugee and would be deported to
Afghanistan Kabul irrespective of whether it was reasonable or practical to expect him to reside there. You can almost imagine Immigration Minister Scott Morrison’s Cabinet colleague Mathias Cormann doing a jocular Arnold Schwarzenegger imitation over a surreptitious cigar: “Hasta la vista baby”.