FEDERAL COURT OF AUSTRALIA

FCS17 v Minister for Home Affairs [2020] FCAFC 68

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant do pay the first respondent's costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant do pay the first respondent's costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons of White and Colvin JJ to be published. I agree with the orders that their Honours propose. Subject to the following, I generally agree with their Honours’ reasons, a familiarity with which reasons should be assumed in reading these reasons.

2    The ascription of meaning to the text of the Parliamentary Act may involve a choice that recognises the ordinary or usual meaning of words, context, enactment history, and rules of construction. The proper approaches in answering different legal problems have been discussed frequently by the High Court and (in their proper hierarchical place) by intermediate appellate courts for over 30 years. The reasons of White and Colvin JJ discuss some of these cases. I do not differ from their Honours in their analysis in this regard. Much of the debate of the last 30 years has been focused (whether in word or assumption) upon the weight to be given to text or context; context including enactment history and the expressions made in the promotion of legislation in explanatory memoranda and second reading speeches.

3    At one level, the object of the changes wrought by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amendment Act) could not have been more pellucidly expressed on behalf of those who drafted or authorised the form of the explanatory memorandum and on behalf of the Minister in the second reading speech. I do not think that there was any internal inconsistency in what was stated or said in the explanatory memorandum or the second reading speech about the definition of refugee and well-founded fear of persecution and the question of relocation.

4    As discussed in the reasons of White and Colvin JJ, there had been, prior to the Amendment Act, a degree of uniformity of expression of general principle in regard to the question of the so-called relocation principle and the status of refugees: SZATV v The Minister [2007] HCA 40; 233 CLR 18 at 24-26 [15]-[22]; (see also the helpful discussion by Kirby J at 33-43 [47]-[82]); and see the decision of the House of Lords, in particular the leading judgment of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426. That uniformity of international interpretation was of a convention of great international significance: the Convention Relating to the Status of Refugees 1951, amended by the Refugee Protocol 1967 (the Refugees Convention). By that interpretation, a person would not be excluded from being considered to be a refugee because he or she could have sought refuge in another part of the same country in which he or she feared persecution, if it was reasonable not to expect him or her to do so, what was “reasonable” depending upon the particular circumstances of the person concerned and the impact of relocation within the country of nationality: SZATV at 25-27 [19]-[22] and [24]. The textual source of the so-called relocation principle was that the requirement that the person be outside his or her country (and be entitled to protection) be linked to a well-founded fear of persecution in the home country for a convention reason: Januzi at 440 [7]; SZATV at 25-26 [19] and 40 [70].

5    There had, however, been some diversity in approach in the courts as to what was sufficient to demonstrate reasonableness. This was, in part, a question or difference of principle as to the informing framework of relevant considerations and, in part, a natural and unsurprising consequence of the working out, in case after case, of the application of a general standard abstractly expressed to the infinite variety of human circumstances of feared persecution of different kinds, but all provoking legitimate fear.

6    The question of principle upon which there were differing views focused upon the relevance of the level of civil, political and socio-economic human rights in the place of relocation. In Januzi at 447-450 [18]-[21], Lord Bingham discussed the various approaches in this respect in the leading texts and cases in the common law world, including Australia.

7    Prior to the Amendment Act, the Migration Act 1958 (Cth) defined the criteria against which a decision was to be made as to a protection visa for a person and whether Australia owed that person protection obligations by reference to the Refugees Convention. Of course, the Migration Act, as the domestic Australian law upon which any ultimate question of construction depended, was the proper ultimate focus of attention, and describing the Refugees Convention as the “framework” of the construction of parts of s 36 (as did the explanatory memorandum and the Minister in the second reading speech of the Amendment Act) might be seen as framing the question inaptly: NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52 at 71-72 [61], but see 58-59 [16]-[17]. Nevertheless, it has never been doubted that what was said by Gleeson CJ in Plaintiff S157 v The Commonwealth of Australia [2003] HCA 2; 211 CLR 476 at 492 [29] correctly stated established principle:

[W]here legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia’s obligations.

8    The enactment history of the Amendment Act is a legitimate subject of analysis to understand the content of the meaning of refugee in s 5H of the Migration Act and of well-founded fear of persecution in s 5J of the Migration Act both by reference to s 15AB(1)(b)(i) and (ii) of the Acts Interpretation Act 1901 (Cth) and the common law of statutory interpretation: CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99-101. The enactment history reveals a difference of view as to the proper reach of the Refugees Convention: between courts in Australia (including the High Court) and courts around the world, on the one hand, and the Government, and the Parliament in the latter’s passing of the Bill that led to the Amendment Act, on the other, in connection, relevantly here, with an aspect of the definition of a refugee. This is not strictly to posit a clash of Constitutional authority. (No argument of a Constitutional character was enunciated.) Rather, it is to recognise the authority of Parliament to make statute law for Australia within the boundaries of the Constitution, and to depart, if the choice be made, from the interpretation of a binding international instrument arrived at by Australian courts having referred to jurisprudence of other courts in the world using established legal technique that is informed by appropriate regard for an harmonious international interpretation through respectful comity. Australia’s adoption of the Refugees Convention did not inhibit the authority of Parliament to legislate in a way that departed from the Refugees Convention, or from how courts, Australian or foreign, had interpreted or construed it, and how the courts thereby gave content to its character and form as international law: cf Starke JG An Introduction to International Law (Second Edition) at 38-44. If proposed legislation was stated by the Government (through an explanatory memorandum or a second reading speech) or can be seen to be intended by Parliament (through its passing of the Bill) to be their preferred way, in some identified respect or respects, to express Australia’s obligations under the Refugees Convention as it or they chose to perceive those obligations in that respect or those respects, such may reflect a disagreement with how courts have discerned such obligations, and indeed, with what those obligations in law are, in some identified respect or respects, but it does not necessarily reflect anything other than adherence to the Refugees Convention, except in respect of the enunciated and chosen point or points of departure or divergence. That this may be viewed (in this, or another, context) as a failure by Australia to apply the Refugees Convention, and a failure to comply with its international obligations (as interpreted by courts in the exercise of judicial power: cf Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; 158 FCR 325 at 326 [1], 327 [5] and 348 [48]) can be accepted as correct. This is not so much inconsistency of approach by the Government and Parliament, as recognising that the Government and Parliament were, deliberately, intending to depart from the Refugees Convention as interpreted by the courts in discharge of their Constitutional function of stating what the law is, relevantly in this case, in the respect concerning the so-called relocation principle. To state that the chosen perception of the Refugees Convention is Parliament’s interpretation of the convention is only to explain why it is intended to depart from the convention, as interpreted hitherto by the courts in the exercise of judicial power using established judicial technique.

9    The explanatory memorandum for the bill that led to the Amendment Act (EM) had four particular elements relevant for present purposes. First, the EM stated that the Amendment Act was intending to “codify Australia’s interpretation of its obligations” under the Refugees Convention. The EM described this first intention in the following ways:

•    to ‘fundamentally change…Australia’s approach to managing asylum seekers by…codifying in the Migration Act Australia’s interpretation of its protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention)’: [2];

•    to ‘remove most references to the Refugees Convention from the Migration Act and replace them with a new statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention’: [4]; and

•    to ‘create … a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention’: [10].

10    Secondly, the EM stated that although the new statutory framework replaces the direct references to the Refugees Convention in the Migration Act, this change was not intended to effect a departure from Australia’s protection obligations under the Refugees Convention (implicitly, as understood or stated by the Government and those responsible for the EM). The EM explicitly stated at [10]:

It is not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention but rather to codify Australia’s interpretation of these obligations within certain sections of the Migration Act.

11    Thirdly, the EM stated an intention to depart (relevantly in one respect concerning the so-called relocation principle) from the construction given to the Refugees Convention by Australian and international courts by excluding a “reasonableness test” from the definition of “refugee” under the Migration Act. According to the EM this was to be achieved through s 5J(1)(c). The EM stated at [10]:

The new paragraph 5J(1)(c) makes it clear that a person only has a well-founded fear if that person has a ‘real chance’ of persecution in all areas of the receiving country…

It is the Government’s intention that this statutory implementation of the ‘internal relocation’ principle not encompass a ‘reasonableness’ test which assesses whether it is reasonable for an asylum seeker to relocate to another area of the receiving country.

12    Specifically, the intention appeared to be to exclude any consideration by the decision-maker of the “practical realities” of requiring relocation such as whether it would be reasonable to expect the person to suffer a diminution in quality of life or financial hardship following internal relocation. The EM stated at [10-11] the following:

Australian case law has broadened the scope of the ‘reasonableness’ test to take into account the practical realities of relocation. Decision makers are currently required to consider information that is additional to protection considerations under Article 1A(2) of the Refugees Convention such as a diminishment in quality of life or potential financial hardship. In the Government’s view, these considerations are inconsistent with the basic principle that protection ought be offered by the international community only in the absence of protection within all areas of a receiving country.

13    Fourthly, despite the stated intention to exclude the reasonableness test, the EM did contemplate that the decision-maker would be required, in some regard, to consider whether the internal relocation alternative was of a certain quality or had a certain character, in the sense of being a place that the person could “safely and legally access”. The EM stated at [10]:

When determining whether a person can relocate to another area of the receiving country where they do not have a real chance of persecution, a decision maker should take into account whether the person can safely and legally access the area upon returning to the receiving country.

14    The Minister’s second reading speech for the Amending Act manifested similar intentions. First, the Minister indicated that the changes effected by the Amending Act were not intended to “in any way compromise” Australia’s commitment to its obligations under the Refugees Convention. The Minister stated (Commonwealth of Australia, Parliamentary Debates, House of Representatives, 25 September 2014 (Scott Morrison MP, Minister for Immigration and Border Protection) at 10547):

Schedule 5 of the bill will also create a new, independent and self-contained statutory refugee framework which articulates Australia's interpretation of its protection obligations under the Refugees Convention. The government remains committed to ensuring it abides by its obligations in respect to the Refugees Convention and this change does not in any way compromise this commitment.

15    Secondly, the Minister went on to make clear that the changes were intended to end the direct connection between the Refugees Convention and the Migration Act, allowing the Parliament to “decide what [Australia’s] obligations are” under the Refugees Convention. He stated (ibid):

The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions—not those who seek to direct us otherwise from places outside this country. The new framework clearly sets out the criteria to be satisfied in order to meet the new statutory definition of a 'refugee' and the circumstances required for a person to be found to have a 'well-founded fear of persecution', including where they could take reasonable steps to modify their behaviour to avoid the persecution.

Let me be clear, the government is not changing the risk threshold required for assessing whether a person has a well-founded fear of persecution. Under the new framework, refugee claims will continue to be assessed against the 'real chance' test, which has been the test adopted by successive governments, in line with the High Court's decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.

16    These expressions were not a usurpation of the judicial power by arrogation of the right to interpret legislation or to decide cases in the exercise of the judicial power of the Commonwealth. Rather they were an expression of the view of the Minister (albeit, at least partly, unnecessary to state for any legal reason) that Parliament makes Australian statute law, not foreign courts and that it (Parliament) will, in passing the Bill, depart from how courts internationally (and the High Court of Australia) have (and has) interpreted the reach of the words of an international convention and of Australia’s obligations thereunder (in the respects identified), in order to put in place a more restricted response to circumstances calling for protection for which Parliament decides, in the making of legislation, the Refugees Convention and the nation’s international obligations call.

17    In this context, one must go to the text of the Amendment Act and the Migration Act, against the background of the Refugees Convention which is still the matter of international concern to which the legislation is directed and the obligations which the codification seeks to embody.

18    The real chance of persecution contemplated by s 5J(1) is to relate to “all areas of a receiving country”. The phrase it not to be read as literally geographical. Persecution for convention reasons is not a geographical concept or an incident of geography, it is a feature of human societies and of human failings or behaviours in social and political life. The phrase should be interpreted as referring to areas inhabited or habitable in a receiving country. One may escape and be free from persecution in the middle of a scorching and inhospitable desert or upon a frozen mountain top, but it would be both an absurd and unreasonable interpretation of the words “all areas” in s 5J(1)(c) (vide s 15AB(1)(b)(ii)of the Acts Interpretation Act) to include such geographical areas in the assessment of the refugee status of the person.

19    The Refugees Convention’s purpose was the giving of refuge or asylum or safe haven to those who, owing to a well-founded fear of persecution had left their country of nationality. The grounds of persecution: race, religion, nationality, membership of a particular social group or political opinion were the parameters of the creation of the state obligation (to other states) to give refuge, asylum or safe haven to those whose fear of persecution was to be characterised as well-founded.

20    It accords entirely with the humanitarian and protective purpose of the convention to place the obligation of protection on a country where a person seeks refuge, asylum or safe haven and who is outside his or her country of nationality and he or she relevantly fears persecution in part of that country and he or she cannot lawfully go to any other part of that country that is inhabited or habitable, and safe. This construction does not flow directly out of the text of the Refugees Convention, nor out of the text of the Amendment Act or of the Migration Act. It does appear, at least in part, expressly in the EM. The EM, however, is not its legal source, though the EM’s content helps determine the meaning of the words “all areas” in s 5J(1)(c). Its legal source is the notion of safety immanent within the core obligation of protection in the Refugees Convention as an humanitarian instrument concerned with the protection of the persecuted in a society. It is this source and context that gives “color and content” to the “crystal” (adapting the words of Holmes J in Towne v Eisner 245 US 418, 425 (1918)) which is the phrase “all areas”. This content was recognised, in respect of safety and legality, by the Minister and the Government in the EM and in the second reading speech and by the Parliament in the passing of the Amendment Act in that context and in the context of the terms and essential nature of the Refugees Convention. There was, relevantly, a disagreement with, and a withdrawal from, a notion of reasonableness in relocation that courts world-wide (including the High Court of Australia) had elucidated in the interpretation of the international instrument. That disagreement was manifested in the removal of the so-called reasonableness test in respect of relocation (by the inclusion in the meaning of well-founded fear of persecution of the words of s 5J(1)(c)) contrary to the Refugees Convention as hitherto interpreted uniformly by courts in Australia and internationally. That disagreement did not, however, undermine the commitment to the Refugees Convention otherwise made in the EM, the second reading speech, and the Amendment Act, nor did it undermine the continuing relevance, from that commitment otherwise, of the established principle expressed by the Chief Justice in Plaintiff S157 211 CLR at 492 [29] referred to at [7] above.

21    The phrase “all areas” in s 5J(1)(c), from its context, is to be taken to mean inhabited or habitable, and safe areas to which the person can lawfully go. This is not to read words into the provision; it is to understand that what might be in other contexts mere words of geography have, in this context, a content of meaning directed to human life, social existence and safety.

Associate:

Dated:    21 April 2020

REASONS FOR JUDGMENT

WHITE AND COLVIN JJ:

22    The issue raised by these two appeals concerns the proper construction of the provisions of the Migration Act 1958 (Cth) that provide for the grant of protection visas to those who seek asylum in Australia. It concerns the way in which those provisions apply when it might be said that the person seeking protection in Australia could find safe refuge in their home country, but only in a place outside their habitual place of residence (home area).

23    Before the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth) (Amendment Act), the Migration Act defined the circumstances in which a person could obtain a protection visa by reference to the terms of the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol (together, Convention). In particular, the Convention definition of 'refugee' was adopted and applied in Australia. Therefore, the interpretation of the definition depended on the construction which the international community attributed to the treaty and on the rules of customary international law codified in the Vienna Convention on the Law of Treaties.

24    By the Amendment Act, s 5H and s 5J of the Migration Act were introduced to define the terms 'refugee' and 'well-founded fear of persecution' for the purposes of the Act. Those definitions were then deployed in s 36(2) to express statutory criteria to be satisfied by an applicant for a protection visa. The criterion presently relevant is that the applicant is 'a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee'.

25    One consequence of the Amendment Act was that the definition of refugee became a matter of Australian law to be interpreted in accordance with domestic principles of statutory construction, instead of according to the principles applicable to an international instrument.

26    The extent to which the Amendment Act gives effect to the prevailing international view as to the interpretation of the definition of refugee in the Convention is at the heart of the competing contentions advanced in the appeals.

The previous position

27    Before s 5H and s 5J were introduced, the law in Australia was to the effect that a person who faced persecution in their home area but who could have found protection in another part of their home country in a place where that person could reasonably be expected to relocate, could not be said to be outside their home country owing to a well-founded fear of being persecuted for a reason expressed in the relevant international instruments as to refugees to which Australia is a party: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [9]-[22] (Gummow, Hayne and Crennan JJ, Callinan J agreeing).

28    The above view was in accord with the manner in which the House of Lords had interpreted the definition in the Convention of 'refugee'. In Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426, Lord Bingham put the matter in the following terms at [7] (Lord Nicholls, Lord Carswell and Lord Mance agreeing, Lord Hope to similar effect):

The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. Although described by a number of different names this relocation alternative has now been recognised for a number of years, at any rate since publication of para 91 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees in 1979:

'The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.'

The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.

29    His Lordship described the position as readily and widely accepted: at [8]. A similar position had been adopted in this Court: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at [13]-[16] (Black CJ), at [20] (Beaumont J), at [2] (Whitlam J).

30    Recently, the High Court in considering an appeal as of right from a judgment of the Supreme Court of Nauru confirmed the position: CRI026 v The Republic of Nauru [2018] HCA 19. Applying the decision of Lord Bingham in Januzi, Kiefel CJ, Gageler and Nettle JJ said at [42]:

As will be recalled, the Convention defines a 'refugee' in substance as any person outside his or her country of nationality who is unable or unwilling for Convention reasons to avail him or herself of that country's protection. And as Lord Bingham of Cornhill observed … a person is not unable to obtain the protection of his or her country of nationality if he or she is able to obtain it in part of that country to which he or she could reasonably relocate.

Range of views about reasonableness

31    There is a common international view that a person is a refugee for the purposes of the Convention if the person was at risk of persecution for a Convention reason in their habitual place of residence and also could not reasonably relocate to a safe place elsewhere in the country from which they had fled. However, there has been diversity in views as to the circumstances in which relocation to the safe place would be reasonable. As was observed by Lord Bingham in Januzi, the decisions in various jurisdictions reveal a range of views as to what must be established in order to demonstrate that relocation to a safe place outside the person's home area would not be reasonable: at [9]-[19]. His Lordship concluded at [15], [20] that the following approach adopted in E v Secretary of State for the Home Department [2003] EWCA Civ 1032; [2004] QB 531 at [23]-[24] expressed the test to be applied in the United Kingdom (emphasis added):

Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there. Living conditions in the safe haven may be attendant with dangers and vicissitudes which pose a threat which is as great or greater than the risk of persecution on the place of habitual residence. One cannot reasonably expect a city dweller to go to live in a desert in order to escape the risk of persecution. Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country 'is outside the country of his nationality by reason of a well-founded fear of persecution'.

If this approach is adopted to the possibility of internal location, the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought.

32    In adopting the above approach, what was known as the Hathaway/New Zealand rule was rejected. It was a rule that assessed reasonableness of relocation by having regard to whether basic norms of civil, political and social-economic human rights (basic rights) were observed in the place in a person's home country where there was freedom from persecution. According to the rejected rule, reasonableness of relocation was to be adjudged by undertaking an assessment of the observance of basic rights in the claimed safe place when compared to the observance of such rights in the place where asylum was sought (or perhaps in Convention countries in general). It was a rule that at the time of the decision in Januzi was seen by Lord Bingham to be supported in Australia by some observations in Randhawa. Given the High Court's subsequent endorsement in CRI026 of the approach in Januzi, it is a rule which if it ever did form part of the law as to the interpretation of the Convention in Australia, no longer does.

33    The effect of endorsing the approach in E v Secretary of State for the Home Department was that the reasonableness of not relocating to the safe place outside a home area was to be assessed by comparing the conditions prevailing in the person's home area with those in the area said to be the safe place. Although this was a much narrower view of reasonableness than that expressed in the 'Hathaway/New Zealand rule', it still involved a comparison between the circumstances faced in the home area and the circumstances in the safe place. It required an evaluation as to whether there was another place within the home country that was both safe (in a broad sense) and a place to which it was reasonable for the particular person to relocate. It did not involve a consideration confined to an evaluation as to whether there was a place within the home country where a person would be safe from persecution for Convention reasons. Even if there were places outside the home area of a person where they would not face persecution, it was still necessary to demonstrate that there was a safe place that was a 'viable or realistic alternative' for the person to live.

34    The recognition of a need to evaluate whether relocation was reasonable to be adjudged by reference to whether there was a viable or realistic alternative place to live was a significant aspect of the interpretation of the Convention definition of refugee adopted by the House of Lords in Januzi. To move from a place where there was housing, ready access to food and work to a place where there was no housing or no work may not be a viable or realistic alternative, even though it may afford safety from persecution. Even if it afforded the same access to housing, food and work as was available in a person's home area, it may not be a viable or realistic alternative because it posed other threats and dangers much worse than the threat of persecution for Convention reasons (even though it offered freedom from such persecution). One can contemplate unsafe places such as war zones or anarchic places where the risk of harm is not due to any particular persecution of an individual: AOS18 v Minister for Immigration and Border Protection [2019] FCAFC 140 at [18]-[19] (McKerracher, Banks-Smith and Colvin JJ).

Sections 5H and 5J and the Explanatory Memorandum

35    Sections 5H and 5J are expressed in the following terms:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purposes and principles of the United Nations.

5J    Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person's identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

(iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person's life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person's capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

36    When s 5H and s 5J were introduced, the Explanatory Memorandum for the Bill that became the Amendment Act said that the Bill 'removes most references to the Refugees Convention from the Migration Act and instead creates a new, independent and self-contained statutory framework which articulates Australia's interpretation of its protection obligations under the Refugees Convention'. The Explanatory Memorandum went on to disavow any intention on the part of the Government to resile from its protection obligations under the Convention. It described the intention as being 'to codify Australia's interpretation of these obligations'.

37    As has been noted, at the time the Bill was introduced Australia's interpretation of those obligations had been that stated by the High Court. It was in the terms stated in SZATV, and was to the effect that for the existence of a safe place to be the basis for concluding that a person was not a refugee, it must be reasonable for the person to relocate to that safe place.

38    In cases like the present case where the person claiming to be a refugee has a nationality, s 5H (as now enacted) defines refugee to mean a person outside his or her country of nationality who 'owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country'.

39    Section 5J then defines the circumstances in which a person has a well-founded fear of persecution. It does so by describing both inclusive and exclusive criteria. The inclusive part in s 5J(1) describes a person (a) who fears being persecuted for any of a stated list of reasons (reflecting those stated in the Convention); (b) for whom there is a real chance that if returned would be persecuted for one or more of those reasons; and (c) in respect of whom 'the real chance of persecution relates to all areas of a receiving country'. Relevantly for present purposes, s 5J(2) then provides that a person does not have a well-founded fear of persecution 'if effective protection measures are available to the person in a receiving country'. The key words for present purposes are those that require the relevant persecution to relate to all areas of the receiving country.

40    Perhaps importantly, when the above changes were made, the separate criterion for a protection visa on the basis of what is commonly referred to as complementary protection was not changed. Complementary protection refers to the circumstances in which a person will meet the criteria for a protection visa because 'a necessary and foreseeable consequence' of the person being removed from Australia 'is a real risk that [the person] will suffer significant harm': s 36(2)(aa). The focus is upon the consequences of return rather than the risk of harm due to persecution in the person's home country. The principles to be applied where there is a claim to complementary protection were most recently considered in GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [38]-[50] (Allsop CJ and Mortimer J, Snaden J generally agreeing).

41    The term 'significant harm' is separately defined: s 36(2A). It includes arbitrary deprivation of life, death penalty, torture and cruel or inhuman or degrading treatment or punishment. There is taken not to be a real risk of such harm if the Minister is satisfied that 'it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm': s 36(2B). So, the qualifying term 'reasonable' is expressly stated in the complementary protection provisions in terms that mirror the interpretation by the High Court of the Convention definition of 'refugee'. However, complementary protection is not concerned with protection from persecution. It is concerned with exposure to the significant types of harm as defined.

42    The complementary protection provisions were themselves introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) for the express purpose of conforming the terms of the Migration Act to the requirements of the Convention: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [69]-[71] (Edelman J), see also at [1] (Kiefel CJ, Nettle and Gordon JJ).

43    Lest it be thought that the statements in SZATV and Januzi concerning reasonableness of relocation were confined to complementary protection, it is well to bear in mind the following passage from the joint judgment of Gummow, Hayne and Crennan JJ in SZATV at [20]-[22] (after quoting the key passage from Lord Bingham):

The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase 'the protection of that country' in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals.

Lord Bingham went on in Januzi to refer to the statement in the UNHCR Handbook, at [91]:

'The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.'

His Lordship, significantly both for Januzi and the present appeal to this Court, added:

'The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.'

44    Likewise, although CRI026 was concerned with a claim to complementary protection, it is plain that in the passage quoted above the Court acted on the basis that reasonable relocation is a concept that attaches to the definition of 'refugee' in the Convention and thereby applies to a person seeking protection on the basis of their status as a refugee.

45    Returning to the Explanatory Memorandum, it provided the following explanation concerning the purpose of the new definitions:

… the Migration Act will be amended to provide as a criterion for the grant of a protection visa that the applicant satisfy the definition of refugee as set out by the new statutory framework. Australia's interpretation of Article 1A(2) of the Refugees Convention will be implemented through the new section 5H …

46    It is to be noted that it is Article 1A(2) that has been interpreted as meaning that a person is not outside their country of nationality owing to a fear of persecution if there is a safe place within the country to which it was reasonable for the person to relocate. As that construction had been adopted by the High Court, any codification of Australia's existing interpretation of the Convention might be expected to include that aspect. However, the Explanatory Memorandum went on to explain:

The new paragraph 5J(1)(c) makes it clear that a person only has a well-founded fear if that person has a 'real chance' of persecution in all areas of a receiving country. When determining whether a person can relocate to another area of the receiving country where they do not have a real chance of persecution, a decision maker should take into account whether the person can safely and legally access the area upon returning to the receiving country.

It is the Government's intention that this statutory implementation of the 'internal relocation' principle not encompass a 'reasonableness' test which assesses whether it is reasonable for an asylum seeker to relocate to another area of the receiving country. Australian case law has broadened the scope of the 'reasonableness' test to take into account the practical realities of relocation. Decision makers are currently required to consider information that is additional to protection considerations under Article 1A(2) of the Refugees Convention such as a diminishment in quality of life or potential financial hardship. In the Government's view, these considerations are inconsistent with the basic principle that protection ought be offered by the international community only in the absence of protection within all areas of a receiving country.

47    So, the Explanatory Memorandum manifested an express intention to alter the pre-existing law in a particular respect. The codification being effected concerning relocation to a safe place was to reflect a different view to that which had been adopted by Australian Courts. In the terms expressed in the Explanatory Memorandum, a person was not a refugee if there was a safe place, being a place which a person could 'safely and legally access' upon return. The principle to be applied was one which was not to encompass any form of a reasonableness test.

48    The Explanatory Memorandum described the law as being an implementation of the internal relocation principle that does not encompass a reasonableness test of a kind that assesses whether it is reasonable for an asylum seeker to relocate to another area of the country. It said that the change in law was informed by a view that considerations such as a diminishment in quality of life or potential financial hardship were matters additional to protection considerations and, on that basis, the assessment as to whether relocation was reasonable should be confined to protection considerations.

49    Given the state of the international jurisprudence as to the interpretation of the definition of refugee in the Convention it is difficult to reconcile the proposition in the Explanatory Memorandum that it was not the intention of the Government to resile from Australia's protection obligations under the Convention with the separate proposition that the qualification of reasonableness be removed from the evaluation as to whether the availability of relocation to a safe place means that the person was not a refugee.

50    It is also somewhat difficult to reconcile the statement that in determining whether a person can relocate to another area where they do not have a real chance of persecution the decision maker should take into account whether the person can 'safely and legally access' that area with the later statement in the Explanatory Memorandum that 'protection ought be offered by the international community only in the absence of protection within all areas of a receiving country'. However, one means of reconciling those two statements is to read the latter statement as referring to an absence of protection within all safe areas of the receiving country to which there can be safe and lawful access.

51    In the result, as we have noted, s 5J(1)(c) is expressed in terms that require a person claiming to have a well-founded fear of persecution to show that their real chance of persecution relates to all areas of the country. There is no language that requires any evaluation as to whether a place where there is no real chance of persecution is a viable or realistic alternative place for the person to live such that they might be expected to relocate to that area rather than seek refuge in another country.

52    A person who does not meet the requirement in s 5J(1)(c) may be able to claim complementary protection if there is no place in the receiving country where that person would be both free from persecution and 'significant harm'.

53    As has been noted, the Explanatory Memorandum recognised expressly that there should be an inquiry as to whether a person can 'safely and legally access' an area. In that regard, it said as to s 5J(1)(c):

When determining whether a person can relocate to another area of the receiving country where they do not have a real chance of persecution, a decision maker should take into account whether the person can safely and legally access the area upon returning to the receiving country.

54    Therefore, although the definition of well-founded fear of persecution required a real chance of persecution that related to all areas of a receiving country, the express purpose of the new definition was to exclude areas of the receiving country to which a person could not safely and legally obtain access. Put another way, the return to the receiving country that was contemplated was a return to any part where the person could safely and legally access. If there was any such place where there was no real chance of persecution then the requirement of the definition would not be met. So much was said to be the express purpose of the amendment to introduce s 5J(1)(c).

Proper approach to contextual construction

55    The application of established rules of construction so as to give effect in an objective way to the manifestation of the intention of the legislature through the particular words used is an important expression of the constitutional relationship between the arms of government: Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28]. Ultimately, 'the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed': Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16].

56    In construing a statute, the task is to ascertain the contextual meaning of the words used: SZTAL at [14]. Explanatory Memoranda should be considered as part of the context, particularly in identifying any particular mischief addressed by the provisions, but recognising the nature of such documents, their limitations in providing a specific statement addressing the construction problem at hand and the nature of the task which is to interpret the words used in the law as enacted: s 15AB of the Acts Interpretation Act 1901 (Cth); R v Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518, 520; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [31]-[34], [57]-[58] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); and see the review of the authorities by McKerracher, Barker and Rangiah JJ in Cole v Minister for Immigration and Border Protection [2018] FCAFC 66; (2018) 261 FCR 537 at [30]-[53].

57    'Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text': Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]. The text is always a limiting factor because the command of Parliament finds expression in the words used. Therefore, it is said that the starting point is the text whilst, at the same time, there is to be regard to context and purpose: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]; and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

58    Statutory construction involves choosing from the range of possible meanings which Parliament should be taken to have intended: Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 at [57]. The range of meanings is itself to be informed by matters of context from the outset and not just when ambiguity is thought to arise: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315; and SZTAL at [14].

59    The use of the same words as are to be found in an international convention or treaty may manifest an intention that within the domestic legislative instrument the words are to be given the same acquired meaning as they have been understood to hold when used in the international instrument: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 265. Where a statute transposes the text of a treaty into the statute, 'the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty' and the rules as to international treaties are to be applied to the transposed text and 'the rules generally applicable to the interpretation of domestic statutes give way': Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 230-231 (Brennan CJ), as approved in Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 at [35]. Further, where there is ambiguity, a construction which accords with the obligations of Australia under an international treaty should be favoured, at least where there is a basis to conclude that the law was intended to give effect to those obligations: Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 (Mason CJ and Deane J).

60    The more particular considerations that arise in the interpretation of an express requirement to give effect to particular criteria stated in an international convention by operation of domestic law (as to which, see the examples given by French CJ in Maloney v The Queen [2013] HCA 28; (2013) 252 CLR 168 at [15]) do not arise in the present case.

61    It is to be remembered that the Amending Act does not incorporate the language of the Convention. As we have explained, there is an expressly manifest intention to depart from the meaning attributed to the text of the Convention according to the application of principles for the interpretation of international treaties. Different language to that contained in the Convention being language which expressly excludes the word reasonable has been used to articulate Parliament's interpretation of Australia's obligations under the Convention. At the same time Parliament has said that it is not the intention of Parliament to resile from Australia's protection obligations under the Convention. Given the state of the law as to the interpretation of the Convention and High Court authority on the point, if the language of the Convention had continued to be adopted in the Act then reasonableness as to relocation to a place outside a person's home area would continue to apply.

Inconsistent purposes in the Explanatory Memorandum

62    It follows from the above analysis that the Explanatory Memorandum manifests inconsistent purposes. The first, to adhere to Australia's obligations under the Convention. The second, to resile from them by excluding the reasonableness of relocation aspect. Otherwise, the purpose was to require decision-makers to take account of whether a person can safely and legally access an area of a receiving country said to be a place where the person would not be persecuted if returned to that country.

63    In those circumstances, the text considered in the context of the Migration Act as a whole assumes particular significance. As does the absence of any clear intention to depart from the Convention in a respect that would expose a person being returned to a place in a receiving country that was not safe.

Cases in this Court since the Amending Act definition of refugee was introduced

64    In a series of decisions in this Court concerned with s 501CA, it has been necessary to consider whether the Minister, in refusing to revoke the cancellation of a visa, has brought to account the manner in which the protection visa provisions in the Migration Act have operated since the enactment of the Amending Act. The issue has arisen because of instances in which the Minister has expressed the view that Australia's non-refoulement obligations would be considered in the assessment of an application for a protection visa. Statements to that effect by the Minister have been treated as expressing a view that Australia's obligations under the Convention in respect of refugees will guide the determination of any protection visa application. The view has been found to be erroneous and to be a basis upon which the Minister's decision may be reviewed for jurisdiction error.

65    There are a number of such cases. The reasoning adopted in those cases is illustrated by the following passage from the recent decision by White, Perry and Charlesworth JJ in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 where their Honours said at [90]-[97] (references to some authorities omitted):

Counsel noted that, before the amendments to s 36 of the Act effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment) which came into operation on 18 April 2015, the criterion in s 36(2)(a) of the Act had largely 'picked up' the definition of 'refugee' in Art 1 A(2) of the Refugees Convention, namely:

... [O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In their form before the 2014 Amendment, ss 36(2)(a) and (2)(aa) had provided:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (Emphasis added)

Since the 2014 Amendment, ss 36(2)(a) has provided as follows:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (Emphasis added)

As is apparent, before the 2014 Amendment, the protection obligations to which s 36(2)(a) referred were those arising under the Refugees Convention. Australia had 'protection obligations' to persons who were refugees as defined in Art 1 of the Refugees Convention: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at [42]. The 2014 Amendment removed the reference to the Refugees Convention and substituted the words 'because the person is a refugee'.

The term 'refugee' and the term 'well-founded fear of persecution' which it incorporates are defined in the Act in ss 5H and 5J respectively.

Counsel for the appellant submitted, and counsel for the Minister did not dispute, that the criteria under ss 5H and 5J are narrower than those under the Refugees Convention. Counsel referred, in particular, to the 'internal relocation principle' by which persons may be found to be refugees within the meaning of the Refugees Convention if they have a well-founded fear of persecution in one part of their home country, and it would not be reasonable to expect them to relocate to another part: … Section 5J(1)(c) has the effect of removing the internal relocation principle from consideration in an application for protection under s 36(2)(a): BCH17 v Minister for Immigration and Border Protection [2018] FCA 300 at [46].

Counsel for the appellant submitted that the internal relocation principle was potentially relevant presently because of the claim that the appellant has a well-founded fear of persecution in the north of Nigeria.

Hence, the appellant submitted that it had been wrong for the Assistant Minister to assume that Australia’s international non-refoulement obligations would be considered in the assessment of an application for a Protection visa.

66    Also, both Rangiah J in BCH17 v Minister for Immigration and Border Protection [2018] FCA 300 and White J in CQI16 v Minister for Immigration and Border Protection [2019] FCA 718 at [67] have held that the introduction of s 5J(1)(c) resulted in a change in the law to the effect that a decision-maker was no longer required to consider the reasonableness of internal relocation in determining a claim to protection on the basis that the person is a refugee. These decisions have been applied by the primary judge in each of the decisions of the Federal Circuit Court the subject of these appeals.

67    In BCH17, Rangiah J noted the amendments effected by the Amending Act and the fact that they removed references to the Convention in relation to the refugee based criteria for obtaining a protection visa: at [45]. His Honour referred to the decision in SZATV, noting that the High Court had there held that a person would be excluded from refugee status under the Convention if, under all the circumstances, it would be reasonable to relocate within the applicant's home country to an area outside the applicant's home area: at [46]. His Honour then concluded at [46]-[47]:

Section 5J(1)(c) does not leave any room for consideration of the reasonableness of internal relocation. Under that provision, a person is not a 'refugee' if there is some area of the receiving country where there is no real chance of the person being persecuted for reason of race, religion, nationality, membership of a particular social group or religion.

However, the Amending Act did not amend the 'complementary protection' criterion under s 36(2)(aa) of the Act. That criterion, taken with s 36(2B), requires that it must not 'be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm' (emphasis added). Accordingly, a person who is not a 'refugee' because there is an area within the receiving country where there is no real chance of serious harm, may still be eligible for 'complementary protection' on the basis that it is not reasonable for the person to relocate to that area

68    The decision in BCH17 was applied in the context of an Ibrahim type case in Kio v Minister for Home Affairs (No 2) [2019] FCA 1293 at [23].

69    It was also applied in CQI16. In that case, White J followed the decision in BCH17 on the basis that it had not been demonstrated to be plainly wrong: at [67].

70    The case for the appellants was advanced on the basis that this Court on appeal should reach a different conclusion to that reached in BCH17 and CQI17. However, it must also be recognised that the argument advanced also invites this Court to take a different view of the position to that reached in a series of Full Court decisions on the same point, albeit in the context of considering cases that arise under s 501CA of the Migration Act. That is a conclusion that this Court would not reach unless it was satisfied that the reasoning in those decisions was plainly wrong in the sense explained in the authorities: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492; CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [49]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]; and Gett v Tabet [2009] NSWCA 76 at [283].

71    The reasoning in the decided cases in this Court, including the cases culminating in Ibrahim, has been based upon the imperative of the text to be found in s 5J(1) and the manifest intention to effect a change in the law. It has not been demonstrated that the reasoning in those decisions was plainly wrong.

Contextual construction of s 5J(1)(c)

72    The following matters assume significance in construing the text of s 5J(1)(c).

73    First, the text does not reflect the language of the Convention.

74    Second, reasonableness as a qualifying term for relocation is used expressly in s 36(2B) in relation to complementary protection. In that context, its omission from the definitional provisions for the terms used in s 36(2) is significant.

75    Third, the previous statutory language had been interpreted to be qualified by a requirement of reasonableness and it was the removal of that aspect that was the focus of the amendment.

76    Fourth, the terms of s 36 afford a right to a protection visa by reference to risks of persecution. An interpretation that would enable an applicant to be returned to a place that was uninhabitable or where the risks were worse than being exposed to the persecution would be perverse. It could hardly be described as a place that offered protection.

77    Fifth, if a person was not at risk of persecution in some but not all areas of a receiving country, but the places where there was no risk of persecution were uninhabitable or unsafe for such a person then the person would still be entitled to seek a protection visa on the basis of complementary protection. However, complementary protection is confined to those who are at real risk of significant harm of the kind described in s 36(2A). There are reasons why a person may be unsafe that are not included within the scope of those risks. For example, the place may be completely unsuited to human habitation or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work. The place may be so war ravaged that civilians are in daily peril. It may be a place where people like the visa applicant are particularly vulnerable. They may be in a category of people exposed to random violence by criminal gangs or sustained physical abuse. Therefore, the availability of complementary protection is not an assurance that s 36 will operate in a manner that will ensure that a person will not be returned to a receiving country even though there is no safe place where the person will not face persecution.

78    Sixth, as we have explained, in a series of decisions, this Court has held that the terms of s 5J(1)(c) depart from the terms of the Convention and do not include a requirement of reasonableness. It has not been shown that there was error in the reasoning in any of those decisions.

79    Seventh, it would be illogical to deny protection to an applicant on the basis of the existence of an uninhabitable or inhospitable location in the receiving country or a location where the applicant would be free from persecution but was otherwise an unsafe place or it was a place to which it was not lawfully possible for the applicant to secure safe access.

80    Eighth, the phrase 'all areas of a receiving country' must take its meaning from its context within a law which gives effect to Australia's protection obligations under the Convention. A literal construction of the language would mean that the availability of an uninhabitable, inhospitable or unsafe area where a person would be free from persecution would deprive the person from being able to seek refuge in Australia. It is implicit from the subject-matter of the provision that areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country. In context, the areas of a receiving country where there is freedom from persecution are areas where safe human habitation exists.

81    In those circumstances, the reference in s 5J(1)(c) to all areas of a receiving country is not qualified by a criterion of reasonableness. Rather, it should be construed to mean all areas of a receiving country where there is safe human habitation and to which safe access is lawfully possible. Such an intention is implicit in the text and context, informed by the unambiguous terms of the Explanatory Memorandum. It does not involve adding in any language. It is to construe the provision contextually.

82    In order to determine the outcome in the present appeals, it is not necessary to consider the extent to which a requirement that the real chance of persecution must relate to all safe, humanly habitable areas of a receiving country to which safe access is lawfully possible leads to outcomes in particular cases that are different to the 'viable or realistic alternative' relocation requirement approved in Januzi and CRI026.

Rejection of the appellants' contention

83    The contention advanced for the appellants in these two appeals was that persecution 'relates' to an area if it is an area to which a person cannot reasonably relocate in a practical sense. Although different language was used in the notices of appeal, in submissions each of the appeals was presented as raising one issue, namely whether s 5J(1)(c), properly construed, excludes consideration by the Minister, and on review by the Immigration Assessment Authority, of the reasonableness of relocation as part of the assessment of a claim based on s 36(2) of the Migration Act. It was argued that, if it is not reasonable for a refugee to relocate internally then the real chance of persecution 'relates to all areas of a receiving country'.

84    If accepted, the contention for the appellants would read the language of s 5J(1)(c) to mean that a chance of persecution in a person's home area also 'relates' to any other area where the persecution will not occur but to which it is unreasonable for the person to relocate.

85    In part the argument is to the effect that a person cannot have an obligation to prove that there is no area of a country where that person may not be persecuted because the burden would be undue. An argument of that kind was rejected in CRI026 at [38]-[40]. The provision allows for an inquiry to focus upon whether protection is available in a particular part of a country. If so, the requirement in s 5J(1)(c) is not met.

86    The use of the term 'relates' in s 5J(1)(c) does invite the possibility that persecution in one place may relate to another place. The provision could have used more direct language such as 'the real chance of persecution arises for persons residing within all areas of a receiving country'. Instead, it used the term 'relates'. However, the argument that persecution in a home area 'relates' to all areas of a receiving country to which the person could not reasonably relocate depends significantly upon reading the provision through the lens of the Convention, disregarding the contextual material. For reasons we have given, that approach should not be adopted.

87    Also, for reasons we have given the submission concerning a reasonableness qualification of the kind contended for by the appellants must also be rejected. Therefore, the claim that there was error by the primary judge in failing to find jurisdictional error by the Authority in failing to consider reasonableness of relocation in dealing with the claim to protection under s 36(2) must fail.

88    We note that the contention advanced, consistently with the claims before the Authority, was based upon a claim that the risk of serious harm for reasons of persecution extended to all areas of the country. It was not claimed that there was no safe habitable area (in the sense we have described) that was also free from persecution.

Materiality

89    It is not necessary to consider an argument advanced for the Minister to the effect that any failure by the relevant decision-makers (in each case, Reviewers of the Immigration Assessment Authority) to give effect to a reasonableness aspect in considering the claim by the appellants that they were refugees was not sufficiently material to demonstrate jurisdictional error. The argument was based upon the fact that in each case under appeal the applicant for a visa had made a claim based upon complementary protection. In considering the claim to complementary protection the question of whether the applicant could reasonably relocate was considered and rejected by the Authority. It may be that the application of a form of reasonableness test in the context of the test as to whether a person was a refugee may cause a focus upon different considerations to those which arise in the context of a claim to complementary protection. In particular, the significance of the person's home area may not be as great. However, given the conclusion we have reached on the question of construction, it is not necessary to consider those aspects.

Application to adduce further evidence

90    The appellants sought leave to rely on further affidavit evidence in each appeal. It sought to establish that there had been a serious deterioration in the security situation in Afghanistan since the decisions by the Authority to which the appeals relate. The material sought to be adduced was not before the Authority or the primary judge. It was contended that this Court could receive the additional material because it would be relevant to the Minister's contention that any jurisdictional error was not a material failure to conform to the statutory requirement. For reasons we have given it is not necessary to consider the question of materiality. However, materiality is a matter to be determined having regard to the circumstances at the time the Authority made its decision. Where there has been a change in circumstances since a decision by the Authority it is necessary for an applicant to raise those matters in the context of the further exercise of power as part of any process of removal from Australia consequent upon the Authority's decision. Therefore, the evidence was not of a kind that might have affected the outcome before the primary judge. For those reasons, we refuse the applications to adduce further evidence in the form of the affidavits.

Conclusion and costs

91    It follows that the appeals in both matters must be dismissed. There being no reason to depart from the usual approach to costs, the order in both matters should be that the appeal be dismissed with costs to be assessed if not agreed.

Associate:

Dated:    21 April 2020