Minister for Immigration and Border Protection v SZSCA

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Kiefel,Keane JJ.,Gageler J.
• Judgment Date: 12 November 2014
• Neutral Citation: [2014] HCA 45
• Docket Number: S109/2014
• Court: High Court
• Date: 12 November 2014

[2014] HCA 45

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Kiefel, Gageler AND Keane JJ

S109/2014

Minister for Immigration and Border Protection

Appellant

and

Szsca & Anor

Respondents

Representation

G T Johnson SC with J D Smith for the appellant (instructed by Australian Government Solicitor)

S B Lloyd SC with P D Reynolds for the first respondent (instructed by Fragomen)

Submitting appearance for the second respondent

Migration Act 1958 (Cth), s 36(2)(a).

Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Art 1A(2).

Migration — Refugees — Application for protection visa — Where applicant threatened by Taliban — Where Refugee Review Tribunal affirmed decision not to grant protection visa because risk of persecution would only arise on roads outside Kabul, which applicant could avoid — Whether Refugee Review Tribunal fell into error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 — Whether Refugee Review Tribunal failed to address whether it would be reasonable to expect applicant to remain in Kabul.

Words and phrases — “internal relocation principle”, “live discreetly”, “real chance of persecution”, “reasonable to expect”, “well-founded fear of persecution”.

ORDER

Appeal dismissed with costs.

1 French CJ, Hayne, Kiefel AND Keane JJ. The first respondent (“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.

2 In his application 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. The respondent said that 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.

3 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 respondent explained, in a submission to the Refugee Review Tribunal (“the Tribunal”), that 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.

4 In about November 2011, another Hazara truck driver showed the respondent a letter he had been given by the Taliban (“the Taliban letter”). 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.”

5 The respondent said that he decided then to leave Afghanistan and did so 10 days later.

6 The respondent's application for a protection visa was refused by a delegate of the appellant. That decision was affirmed by the Tribunal. Given the nature of the issues on this appeal, it is necessary to refer to the findings of the Tribunal in some detail.

7 The respondent told the Tribunal that he feared that, if he returned to Afghanistan, he would be abducted, abused and/or killed by the Taliban. He also feared that he would be deprived of his ability to make a living. His fears of mistreatment or harm had three bases: his Hazara ethnicity and Shia religion; his membership of a particular social group, namely truck drivers who transport goods for foreign agencies; and his imputed and actual political opinion supportive of foreign agencies.

8 The Tribunal was not satisfied that the Taliban targets Hazara Shias on a systematic and discriminatory basis, or that Afghan truck drivers are persecuted by reason only of their occupation. Nonetheless, the Tribunal accepted that the Taliban generally targets drivers carrying construction materials and discourages them from doing so, and that the Taliban may impute to persons undertaking that activity political opinions supportive of the Afghan government or non-governmental aid organisations. The Tribunal considered it to be quite plausible that the respondent had been warned to desist from such activity.

9 The Tribunal proceeded upon the basis that the Taliban letter was genuine and that the respondent was threatened by it. It accepted that, if the respondent was again intercepted by the Taliban on the roads on which he usually travelled, he would face a real chance of serious harm and even death for a reason specified in the Refugees Convention 1 (“the Convention”), namely the political opinion imputed to him. The Tribunal considered the risk of harm would be greater if he were carrying construction materials. The Tribunal does not appear to have dealt with the matter on the basis of the respondent's claim that, in fact, he held that political opinion. Nor does the Tribunal appear to have attached significance to the description of the respondent in the Taliban letter as an apostate. However, these omissions are not presently in issue.

10 The Tribunal did not accept that the respondent is a high-profile target who would be actively pursued by the Taliban throughout Afghanistan. It viewed him as someone who might be harmed if he came to the Taliban's attention, which would likely only occur if he continued to transport construction materials. There was evidence that the Taliban does not actively pursue and target low-profile persons in Kabul. The area in which the respondent lived in Kabul was predominantly Hazara, where enquiries by the Taliban as to his whereabouts would be conspicuous.

11 The Tribunal observed that, as late as June 2012, the Taliban did not appear to know the respondent's whereabouts. This observation appears to have been drawn from the respondent's statement that, at that time, his brother had advised him that the Taliban was asking about the respondent's whereabouts, having noticed that he was no longer driving on the roads between Kabul and Jaghori. However, this enquiry might also be thought to suggest a level of interest in the respondent on the part of the Taliban.

12 The focus of the Tribunal's determination was upon security in Kabul, which it considered to be “relatively good”. It concluded that it was not satisfied that the respondent would face a real chance of persecution if he remained there. It found that the risk of persecution would only arise in the area constituted by the roads on which he had been driving outside of Kabul, and he could avoid this area. It followed that the respondent did not satisfy the criterion for the grant of a protection visa set out in s 36(2)(a) of the Migration Act 1958 (Cth).

13 At a practical level, the Tribunal was of the view that the respondent would not be obliged to travel between Kabul and Jaghori to make a living. It was satisfied that the respondent could obtain employment in Kabul, such as in making jewellery, as he had formerly done in Jaghori. The detailed account of the hearings before the Tribunal, which is contained in the Tribunal's reasons, does not suggest that this matter was put to the respondent by the Tribunal.

14 On the respondent'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 2. 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 3.

15 The decisions of the Federal Circuit Court and the majority in the Federal Court referred 4 to what was said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs5 as relevant to this matter. In that case the

Tribunal had accepted that it was not possible for the protection visa applicants to live openly as homosexuals in Bangladesh, but found that they had conducted themselves discreetly and there was no reason to suppose that they would not continue to do so if they returned to that country. Four members of this Court held that, by reasoning in this way, the Tribunal failed to consider the question it had to decide – whether the applicants had a well-founded fear of persecution 6. The question for the Tribunal was whether there was a real chance that, upon return to Bangladesh, the applicants would be persecuted for a Convention reason 7. This had not been addressed.

16 In the later case of SZATV v Minister for Immigration and Citizenship8, Kirby J said that the two majority judgments in S395 both spoke of the need for the decision-maker to focus attention on the propounded fear of the applicant for a protection visa and whether it was well founded; and to consider that issue on an individual basis and by reference to the individual applicant, not by reference to a priori reasonable conduct, such as living discreetly, which might reduce the risk of persecution. Gummow...