CDZ16 v Minister for Immigration and Border Protection

Ground 3 4 It is convenient first to consider ground 3. In a statement of his claims which the appellant annexed to his protection visa application of 5 June 2015, the appellant stated: 28. If I am returned to Afghanistan, I am afraid that I will be subjected to serious harm including death. I fear that I will face persecution because of my ethnicity and religion. I am afraid of this harm from Taliban, Pashtun people who support the Taliban and other related groups. 29. My family has previously been targeted in Afghanistan because we are Hazara and Shia. 30. I came here because people get killed everyday in Afghanistan and Pakistan. I left because my life is in danger and I fear I would be killed if I was forced to return there. 31. I do not believe I would be safe anywhere in Afghanistan. Hazaras and Shia Muslims are persecuted everywhere in Afghanistan. I would never have left Afghanistan nor been a refugee if I could live there safely. 32. I am afraid that I would not be protected by anyone, including the authorities, because they do not have the resources to ensure sufficient security and cannot guarantee my safety. Earlier in that statement, the appellant related an incident in 2008 in which he claimed that he and a friend had been stopped at a Taliban checkpoint while travelling by car to his former home in provincial Afghanistan. He claimed that they had been accused of working for Europeans or helping them with their supply chain. This, he said, he had denied. He claimed to have been assaulted and detained but to have escaped the same evening with his friend while his Taliban captors were at prayer. 5 The Authority accepted that this incident had occurred as the appellant related but did not assess the appellant's application by reference to any fear of persecution based on an imputed political opinion, for example, support for Europeans. The learned primary judge concluded that a claim for a protection visa on the basis of an imputed political opinion was neither expressly raised by the appellant nor otherwise reasonably arose on the material before the Authority. 6 The Authority will commit a jurisdictional error if it misunderstands and fails to deal with a basis (sometimes termed an "integer") of an application for a protection visa: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov). In deciding what is a basis for a protection visa application, an application must be read fairly and as a whole, making due allowance for the infelicity of expression which may attend a description offered by a person who may have no or an imperfect command of English. Sometimes, as the dissent in Dranichnikov illustrates, undertaking this task may admit of a difference in views as to exactly what are the integers of a particular claim in light of the description offered by an applicant in the visa application. Allowing for this, my conclusion, contrary to the appellant's submission, is that he chose neither in the statement mentioned nor otherwise to elevate the 2008 incident or any other into an asserted fear of persecution on the basis of any political opinion, imputed or otherwise. The bases of his claimed fear of persecution were his Hazara ethnicity and his adherence to the Shia branch of the Muslim faith. In short, I agree with the primary judge that the Authority did not fail to deal with a basis of the claim as made by the appellant.

Ground 1 7 The essence of the appellant's submissions in respect of this ground is to be found in the particulars furnished by him in the notice of appeal in respect of this ground. A consideration of their merits requires that s 473DC and s 473DD of the Act be set out: 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 8 Ground 1 proceeds upon the mistaken understanding that the term "new information", where it appears in s 473DD, does not carry with it the meaning of that term as supplied by s 473DC(1). One element of that definition is that the information concerned must be information that the Authority "considers may be relevant". 9 The information concerned comprised two news articles, which post-dated the Minister's delegate's decision and which the appellant proffered to the Authority. The appellant accepted that the Authority had correctly summarised the effect of these articles in its reasons (at [6]) in stating: Two of the articles post-date the delegate's decision. The first refers to a young man who was skinned alive in Ghor province because he was said to have been the distant relative of a man suspected of killing a former Taliban commander. The second article reports on Taliban suicide bombers who raided a courthouse in Ghazni city, killing 6 people in what they said was revenge for the execution of Taliban-linked prisoners. [footnote references omitted] The Authority expressed the view that neither article was relevant to the applicant's particular claims. 10 In terms, s 473DC(1) consigns the subject of relevance to the Authority's evaluative judgement and then only to the extent that the Authority "considers" that the information concerned "may", not "must", be relevant. Language of this kind has the effect that it is not for a court on judicial review, much less for this Court in the exercise of appellate jurisdiction, itself to determine whether the information is or is not relevant or even whether it may be relevant. It is enough that a conclusion is reasonably open to the Authority that the information may or, may not, be relevant. The Authority correctly appreciated that the articles were relevant to the general subject of violence in Afghanistan but formed the view that neither touched on a basis for the claimed fear of persecution or, for that matter, more specific issues such as an ability to live in Kabul, even if not elsewhere in Afghanistan. It was reasonably open to the Authority to consider that neither of the news articles might be relevant to a claimed basis of fear of persecution. That being so, it was unnecessary for the Authority to advert to any of the considerations specified in s 473DD, because the need to consider them is predicated upon the existence of "new information", as defined. Neither article comprised "new information".

Ground 2 11 It is first necessary to set out s 5J(1) of the Act: 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. 12 The appellant contended that the effect of s 5J(1) was that the Authority "was required but failed to consider whether there was a safe area that could be accessed safely and legally by the appellant". More particularly, he submitted that, "whether an area is legally and safely accessible is relevant to the proper construction and application of s 5J(1)(c)". His further submission was that the effect of s 5J(1)(c) of the Act was that this question was to be assimilated with whether the real chance of persecution related to all areas of a receiving country. Such a construction of s 5J(1)(c) was said to be supported by the Explanatory Memorandum in respect of the Bill which, as enacted, amended the Act so as to insert s 5J. 13 On its face, s 5J(1) of the Act has nothing at all to say expressly about internal relocation, much less about whether the prospect of that is legally and safely accessible to an asylum seeker. Yet neither on its face does the 1951 Convention Relating to the Status of Refugees (as modified by the 1967 Protocol to that Convention - collectively, "the Refugee Convention") have the like to say. Article 1A(2) of the Refugee Convention materially provides that a refugee is a person who, "owing 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". Even so, in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV), following a construction of Article 1A(2) of the Refugee Convention adopted in the United Kingdom at ultimate appellate level in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 (Januzi) and, as detailed in that case in this and other courts, the High Court held that a well-founded fear of persecution need not always extend to the whole territory of an applicant's country of nationality for that applicant to qualify as a refugee. The High Court held that a person would be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country. What was reasonable was equated with what, in the circumstances of a given case, was practicable, including the impact upon that person of relocation of the place of residence within the country of nationality. 14 The particular passage in Januzi which Gummow, Hayne and Crennan JJ in SZATV (at [19]) regarded as persuasive as to the existence of an internal relocation qualification as just described is to be found, in the speech of Lord Bingham of Cornhill (at 440), who explained: The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. 15 The "causative condition" to which His Lordship referred in Januzi in the passage quoted was the qualifying clause in Article 1A(2) of the Refugee Convention, "owing to well-founded fear of being persecuted for [one or more of the reasons there specified]". This, his Lordship stated, (at 439), "governs all that follows". 16 At the time when SZATV was decided, the Act, by the then s 36(2)(a), made explicit reference to the Refugee Convention as a source of a criterion satisfaction as to the meeting of which was, under s 65 of the Act, a condition for the grant of a Protection Visa. The Minister (or a delegate or in their place a merits review tribunal) had to be satisfied that an applicant was "a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". 17 Section 5J is one of a suite of amendments made to the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (2014 Amendment Act). These amendments resulted in the removal from s 36(2)(a) of the Act of any reference to the Refugee Convention such that the criterion is, materially, now satisfaction that a person is "a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee". As a result of the 2014 Amendment Act, the term "refugee" is expressly defined by s 5H without any incorporation by reference of the Refugee Convention. The "causative condition", "owing to a well-founded fear of persecution", referred to by Lord Bingham in Januzi, is present in s 5H(1) but, within that condition, the meaning of "well-founded fear of persecution" is now supplied by s 5J. 18 While these new provisions have as their inspiration the terms of the Refugee Convention, the absence of any incorporation by reference of that international convention means that, materially, s 5J falls for interpretation not as an international instrument but as a provision in a domestic statute. 19 As to the interpretation of domestic statutes, the High Court has emphasised that, "Legislative history and extrinsic materials cannot displace the meaning of the statutory text": Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]. It is axiomatic that the task of statutory interpretation must begin with the text adopted by Parliament. That text must be considered in context. Part of that context can be legislative history and secondary materials such as an Explanatory Memorandum. As to this, in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at [47] Crennan and Kiefel JJ affirmed that, "the context, general purpose and policy of a statutory provision may be the surest guides"; and see also to like effect in that case per French CJ and Bell J at [5] and [9]. But there are limits to context, purpose and policy as an aid to construction of the text of a statute. If the statutory language admits only of one particular meaning and that meaning is not irrational or absurd, it is nothing to the point that this meaning may be at odds with a meaning stated in an accompanying Explanatory Memorandum. If this means that the legislation has unintended consequences it is for Parliament, if so disposed, to amend it so as better to convey its intention. This approach is deferential to, rather than subversive of, the role of Parliament, because it gives primacy to the text which Parliament has approved. 20 Uninstructed by any reference to the Explanatory Memorandum, it might be thought that the pervasive, unqualified requirement found in s 5J(1)(c) of the Act that, "the real chance of persecution relates to all areas of a receiving country" leaves no room for the continued applicability of the reasonable expectation of internal relocation qualification accepted by Lord Bingham in Januzi, at 440 and then by the High Court in SZATV. The provision looks also to be inconsistent with any "safely and legally" qualification. It would render a person ineligible to be a refugee just if there were a place in the receiving country to which the real chance of persecution did not relate. These, however, are but matters of first impression. 21 Particular reference was made in submissions to the meaning and effect of s 5J as promoted in the Explanatory Memorandum. Particular excerpts from that document therefore need to be set out. 22 Firstly, at a general level of abstraction, the Explanatory Memorandum offers (at [1243]) the following description of the amendments to be made to s 36 of the Act: 1243. The purpose of this amendment is to replace the reference to the Refugees Convention in current paragraph 36(2)(a) with a reference to the new statutory framework relating to refugees. Provided that a person is not otherwise prevented from being granted a protection visa, a person who satisfies the definition of a refugee provided in the new statutory framework will be eligible for a protection visa under paragraph 36(2)(a). This description confirms what an examination of the 2014 Amendment Act would in any event commend to the reader. 23 As to s 5J within the "new statutory framework", the following is stated (at 10): The new section 5J sets out the circumstances that must be satisfied for a person to have a well-founded fear of persecution. This amendment sets out the five grounds for refugee status consistent with those listed in Article 1A(2) of the Refugees Convention. Under the new statutory framework a person will continue to be assessed as to whether they have a 'real chance' of being persecuted. The real chance test is consistent with the High Court's decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. New paragraph 5J(1)(b) is a statutory implementation of this test. As a very general description, this is, in my view, an accurate, unremarkable statement. But the devil is in the detail. More particularly, as to s 5J(1)(c), it is 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. 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. It is this part of the Explanatory Memorandum which is the source for the "safely and legally" gloss which the appellants would put on the unqualified language of s 5J(1)(c) of the Act. This interpretation, in turn, underpins the submission that the Authority did not advert to this subject in its fact finding. 24 Later in the Explanatory Memorandum, the reasoning of the Minister introducing the Bill with respect to s 5J(1)(c) is explicitly detailed (at [1181] - [1183]): 1181. New paragraph 5J(1)(c) provides that a necessary element of the well-founded fear of persecution is that the real chance of persecution relates to all areas of a receiving country. This amendment codifies the 'internal relocation' principle which provides that the fear of persecution is not well-founded in respect of the receiving country if it only relates to some parts of the country. In such cases, the person who could relocate to a safe part of the receiving country upon return would be found not to have a well-founded fear of persecution for the purposes of the new statutory framework relating to refugees. In considering whether a person can relocate to another area, a decision maker will still be required to take into account whether the person can safely and legally access the area upon returning to the receiving country. 1182. Although the 'internal relocation' principle is not explicitly provided for in the Refugees Convention, in the decision of SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV), the High Court has held that the text of the Refugees Convention supports the internal relocation principle and is part of Australian law. The High Court has further found that if it is reasonable for an asylum seeker to relocate to another part of their country of nationality, then their fear of persecution is not well-founded and they will not meet the definition of a refugee in the Refugees Convention. Australia has applied the 'internal relocation' principle consistent with this interpretation. 1183. While the Government will continue to adopt the internal relocation principle in the new statutory framework relating to refugees, it is the Government's intention that the principle will no longer encompass the consideration of whether the relocation is 'reasonable' in light of the individual circumstances of the person. The Government considers that in interpreting the 'reasonableness' element into the internal relocation principle, Australian case law has broadened the scope of the principle to take into account the practical realities of relocation. For example, as a result of cases such as SZATV and Randhawa v MILGEA (1994) 52 FCR 437, when assessing internal relocation options, decision makers are now required to consider aspects such a potential diminishment in quality of life or financial hardship which may result from the relocation. As such aspects fall short of the type of harm which amounts to persecution, the Government considers these to be irrelevant to the assessment of a well-founded fear of persecution. For these reasons, it is the Governments intention that new paragraph 5J(1)(c) not be read down by reference to such notions of 'reasonableness'. In these passages also it will be noted that the ability to place a "safely and legally" but not a "reasonable access" gloss on the language of s 5J(1)(c) is propounded. 25 Whether, in light of Lord Bingham's analysis of the text of the Refugee Convention in Januzi, as approved in SZATV, it can be said that s 5J(1)(c), "codifies the internal relocation` principle", as opposed to radically alters it, is, with respect, at least moot. 26 That s 5J(1)(c) of the Act carries necessarily with it a need to advert to the prospect of internal relocation may be accepted. A well-founded fear of persecution will not relate to "all areas of a receiving country" if there is within that country an area in relation to which there could be no well-founded fear. Why though, one might ask rhetorically, in the absence of any qualification at all in the text of s 5J(1)(c), need that area be one which can be accessed "safely and legally" any more than that the area be "reasonably accessible"? In the course of submissions, I put this proposition to the Minister's counsel but beyond pointing to the Explanatory Memorandum, no particular rationale for the construction of s 5J(1)(c) posited in the Explanatory Memorandum was advanced in response. 27 That the apparently sweeping terms of s 5J(1)(c) of the Act ought to be construed as admitting of some qualification is inherently likely. It remains a principle of our law that the impossible is not expected: Lex non cogit ad impossibilia. This ancient maxim has been applied at ultimate appellate level in Australia so as to qualify otherwise sweeping parliamentary language. In Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417 at 426 McTiernan J referred to this maxim so as to qualify by reference to impossibility in fact an apparently peremptory requirement in a workers' compensation statute which obliged an employer to provide suitable employment to an injured worker during that worker's partial incapacity and which, upon a failure to provide the same, deemed the incapacity to be total. His Honour cited with approval the following passage from Broom's Legal Maxims, 10th ed. (1939), pp 162-163: ... the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling than to impossibilities, and the administration of law must adopt that general exception in the consideration of all particular cases. In the performance of that duty, it has three points to which its attention must be directed. In the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man's own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavours to surmount the difficulties which already formed that necessity, and which on fair trial he found insurmountable. I do not mean all the endeavours which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion, and an ordinary knowledge of business. Thirdly, that all this shall appear by distinct and unsuspected testimony, for the positive injunctions of the law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation. (The Generous; (1818) 2 Dods 322, at pp 323, 324 [165 E.R. 1501]) The explanation of this maxim in this passage was later cited with approval by the Northern Territory Court of Appeal in Van Dongen v Northern Territory of Australia (2005) NTLR 169 at [16]. 28 "Used all practical endeavours", one of the "three points" which are features of the principle encapsulated in this maxim, is, it might be thought, rather wider in its qualifying impact on an apparently imperative statutory provision than "safely and legally possible". 29 As it happens, it is neither necessary nor desirable to reach any concluded view as to in what way, if at all, the apparently pervasive way in which s 5J(1)(c) is cast is, applying statutory interpretation principles, qualified. I note that, recently, in BB016 v Minister for Immigration and Ethnic Affairs [2017] FCA 212, Robertson J also found it unnecessary to express any concluded view on that subject in the circumstances of that case. In this case it unnecessary because, contrary to the appellant's submission but accepting in this regard the Minister's submission, and reading them fairly and as a whole (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), the Authority's reasons disclose that it made the following findings of fact: (a) Afghan citizens have a constitutional right to travel and settle in any part of the country except areas forbidden by law Authority - Reasons [39]. [There has never been any suggestion that settlement in Kabul was forbidden by law and it is implicit in the Authority's finding that this is where the appellant would be returned and that there was no legal impediment to this.] (b) Kabul is home to mixed ethnic and religious communities, including 1.6 to 2 million Hazaras, who make up 40% -50% of that city's population - Reasons [46]. (c) Returnees from Western countries are almost exclusively returned to Kabul - Reasons [41]. (d) The Appellant would be returned to Kabul from Australia - Reasons [41] and [49]. (e) Because of Kabul's size and diversity, a resident there is unlikely to suffer discrimination or violence on the basis of ethnicity or religion and the appellant, as a Hazara Shia, does not have the type of profile that would alter this position and place him at risk of harm - Reasons [41], [42] and [48]. 30 In making these findings, the Authority expressly adverted to s 5J(1)(c) of the Act - Reasons [36]. Having made these findings, the Authority was not satisfied that the appellant, either now or in the foreseeable future, faced a real chance of persecution on his return to Kabul in Afghanistan on account of his Hazara ethnicity or Shia Muslim religion - Reasons [49]. This absence of satisfaction and these findings were reasonably open to the Authority on the material before it. The Authority's findings are consistent only with the appellant being able "safely and legally" to enter and remain Kabul. That being so, even on the interpretation of s 5J(1)(c) promoted by the appellant, his fear of persecution is not well-founded, because it does not relate to all areas of Afghanistan as the receiving country. In these circumstances, it matters not whether s 5J(1)(c) does indeed admit of the promoted construction or any other. 31 It follows that the appeal must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.