Consideration
50 At the heart of the Minister's appeal is the contention that the respondent would have no well-founded fear of persecution for a Convention reason if he could, reasonably, avoid his claimed fear by staying in Kabul and not engaging in the work which gave rise to the imputed political opinion which underpinned his fear. The Minister submits that this approach is not inconsistent with S395 and that the primary judge erred in taking the contrary view. On the facts of this case we disagree, for the following reasons.
51 First, it is appropriate to spend a little time analysing S395 in view of its central significance. It was not a relocation case.
52 In S395, the Tribunal had rejected the applications by two male citizens of Bangladesh for protection visas, which applications were based on their claim to have a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The Tribunal accepted that it was not possible to live openly as a homosexual in Bangladesh, but it found that the applicants had conducted themselves in a discreet manner and that there was no reason to believe that they would not continue to do so if they returned. The applicants argued that the Tribunal had committed jurisdictional error by imposing upon them a requirement that they live discreetly in order to avoid persecution.
53 The High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) held that no such requirement had been imposed and the Tribunal had simply made a finding of fact that they would live discreetly if they were returned. However, four members of the Court made it clear that, while the Tribunal had to determine how an asylum seeker is likely to live on return to his or her country of origin and assess the chance of persecution on that basis, it is not relevant to consider whether the asylum seeker could live in the country of origin without attracting adverse consequences.
54 Justices McHugh and Kirby made the following observations on the issue at [40] to [43]:
…But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a "particular social group" if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention…
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly. (Emphasis added, italics in original).
55 To similar effect, Gummow and Hayne JJ made the following observations on the issue at [80] and [82]-[83]:
If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
…
Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning, exemplified by the passages from reasons of the Tribunal in other cases, cited by the Federal Court in Applicant LSLS v Minister for Immigration and Multicultural Affairs [[2000] FCA 211 at [20]-[21]], leads to error. It distracts attention from the fundamental question … (Emphasis added, italics in original).
56 As Kirby J subsequently stated in SZATV at [89], the common ground in the two joint majority judgments in S395 was:
(a) the need for the decision-maker to focus attention on the propounded fear of the individual asylum seeker and whether it was "well-founded";
(b) that issue has to be considered on an individual basis and not by reference to a priori reasonable conduct that could or might avoid persecution; and
(c) to concentrate on what would happen to the asylum seeker in fact, not what could or might happen if the asylum seeker behaved in a particular way that would reduce the risk of persecution, such as by behaving discreetly.
57 It is significant to note that the Tribunal made no finding of fact that the respondent would not resume the type of truck driving in which he was previously engaged were he to be returned to Afghanistan. Neither did it evaluate the consequence of the respondent having ceased truck driving by reason of the threat made by the Taliban. Although in R[115] the Tribunal expressly rejected any claim based on membership of a social group comprising "Afghan truck drivers", its subsequent finding in that paragraph that the Taliban targets and discourages drivers carrying construction materials (which gave rise to an imputed political opinion supportive of the Afghan government and/or non-governmental aid organisations) suggests at least an implicit acceptance by the Tribunal of the respondent's membership of a narrower social group. We note that although the claim in respect of a narrower social group is not stated in the summary of claims at R[92] it is picked up at R[93]. In oral argument before us, Mr G Johnson SC (who appeared with Mr J Smith for the Minister) submitted that it was unnecessary for the Tribunal to make an explicit finding that the respondent was a member of that narrower social group in circumstances where the Tribunal accepted that the Taliban targeted and discouraged truck drivers from carrying building or construction materials because of the imputed or attributed political opinion inherent in such conduct.
58 Equally significantly (and as the Minister also accepted in oral argument), the Tribunal's reasoning and findings set out in R[130] reveal that the Tribunal saw the central question as what could or might happen to the respondent if he behaved in a particular way, namely by changing his work behaviour so as to remove the foundation for the imputed political opinion which gave rise to his claimed fear of persecution. Such an approach focuses on what could or might happen if the asylum seeker modified his behaviour to reduce the risk of persecution and not on the question of what would happen to him in fact were he to act in the way he said he would if he were returned to Afghanistan where, the Tribunal accepted, a specific threat had been made by the Taliban to kill him or have him killed.
59 It is significant that the Tribunal made a finding at R[119] that if the respondent resumed work as a truck driver driving on roads outside Kabul (particularly if he was again carrying construction materials) he would face a real chance of serious harm or even death, by reason of an imputed opinion. That finding was unchallenged and plainly open on the material before the Tribunal, which included the Tribunal's acceptance of the respondent's claim that in the October 2011 letter the Taliban threatened that he would be killed because he had not changed his conduct despite their earlier warning. The text of the letter, as translated, was as follows:
Islamic Emirate of Afghanistan, Ghazni Province, Khogyani District, is informing the local council people to perform their Islamic duty which is:
Resident of Jaghori, a criminal, seditious by the name of [the respondent], who is driving a Mazda vehicle. He is assisting and cooperating with government and foreign organisations in the transportation of logistical and construction materials from Ghazni city to Jaghori and to Malestan district.
This is our Islamic duty to take a firm decision to get rid of this criminal, infidel person.
Therefore we request from you, to take firm action as soon as possible to get rid of this apostate, criminal person on the road from Qarabagh and Janda areas.
60 To highlight the principles established by S395 and their limits, the respondent drew attention to the decision in NABD. In that case, it was argued that the Tribunal fell into error because it imposed a requirement that the asylum seeker not engage in apostasy upon his return to Iran, relying on S395. However, the Court concluded by a majority that no jurisdictional error was demonstrated because the Tribunal considered what the returnee would in fact do, not whether he could avoid persecution. At [168], Hayne and Heydon JJ said:
At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted. (Emphasis in original)
See also Gleeson CJ at [10]-[11].
61 We accept the respondent's submission that the relevant principles arising out of S395 and NABD are:
(a) the Tribunal cannot require an asylum seeker to behave in a particular manner; but
(b) it is permissible for the Tribunal to conclude that an asylum seeker would not in fact behave in a particular manner upon his or her return.
62 In our view, on the facts of this case the Tribunal committed a jurisdictional error as identified in S395 when it embarked upon a chain of reasoning (which is particularly manifest in R[130]) that the respondent could avoid persecution if he were to change his occupation and work as a jeweller in Kabul. That approach is inconsistent with the principles enunciated by the majority in S395 and as set out in [38] and [39] above because it fails to consider not only whether but also why the respondent would take that step and the threat which caused it where the Tribunal's task was to decide whether the respondent had a well-founded fear of persecution.
63 In our opinion in the present case the Tribunal did not consider, in assessing whether the respondent's fear of persecution was well-founded, what may happen to the respondent if returned to Afghanistan but limited itself to what the respondent could reasonably do if so returned. But the second threat which had been made by the Taliban caused the respondent to give up the activity in question and to flee Afghanistan. This underlines the error in the Tribunal's approach of looking at what the respondent could do rather than what he would do if returned in that the Tribunal did not examine why the respondent would not earn his living as he had previously done. As the Minister accepted, the respondent modified the behaviour that he claimed was the cause of the threats against him by ceasing to work as a truck driver, selling his truck and leaving Afghanistan.
64 We therefore do not accept the Minister's submission that S395 is distinguishable because the expected changed behaviour described by the Tribunal did not involve "abnegation of an attribute" which exposed the respondent to persecution. In the present case the threat had been made and the Taliban was proceeding on the basis that the respondent had the political opinion of being a supporter of foreign agencies. In those circumstances the central importance in the submissions on behalf the Minister on the imputed nature of the political opinion was misplaced.
65 Secondly, we do not accept the Minister's argument that the primary judge erred in rejecting the Minister's contention that there was no error on the part of the Tribunal in expecting the respondent to change his occupation and live/stay in Kabul [as a jeweller] because his previous occupation as a truck driver did not involve a core aspect of his identity, beliefs or lifestyle. Although the parties made no reference to the source of that terminology, it appears to relate to the concept as considered by the Supreme Court of the United Kingdom in RT (Zimbabwe) v Secretary of State for the Home Department [2013] 1 AC 152 (RT (Zimbabwe)). As noted at [41] of that decision, the Home Secretary sought to distinguish the Supreme Court's earlier decision in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 (HJ (Iran)). HJ (Iran) had adopted and applied the reasoning of the majority of the High Court in S395. In HJ (Iran), the Supreme Court also referred to and applied a distinction between conduct which interfered "at the margin, rather than the core" of a protected right under the Refugees Convention. The Home Secretary's analysis of that distinction was expressly rejected by the Supreme Court in RT (Zimbabwe) at [42]-[52]. Lord Dyson (with whom Lord Hope, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Reed agreed) did so on the following bases (which reflected the particular facts of the relevant matters on appeal):
(a) the right not to hold a particular political opinion is itself a fundamental right which is protected by the Convention and a person is not required to express a false support for a political regime in order to avoid persecution;
(b) the Home Secretary's suggested distinction between a core/marginal belief was unworkable in practice and threatened to introduce a "fine and difficult distinction" which was "likely to be productive of much uncertainty and potentially inconsistent results"; and
(c) the distinction was in any event based on a misunderstanding of the Supreme Court's earlier decision in HJ (Iran) and the acceptance there of the reasoning of the New Zealand Refugee Status Appeal Authority in Refugee Appeal No. 74665/03. That reasoning was to the effect that the "being persecuted" standard of the Refugees Convention was not engaged if the right sought to be exercised by the asylum seeker was not "a core human right". Lord Dyson gave examples of the kind of activity which were at the margins of a protected right under the Refugees Convention, which included prohibiting a homosexual from adopting a child on the ground of his or her sexual orientation or denying transsexuals or homosexuals the right to marry. As Lord Dyson emphasised at [50], the determination of whether an applicant's proposed or intended action lay at the core of a right or at its margins was useful in deciding whether or not the prohibition of it amounted to persecution because it focused attention "on the important point that persecution is more than a breach of human rights".
66 In our view, the distinction between the "core" as opposed to the "margins" of a fundamental human right has limited if any relevance to an imputed political opinion of the sort which the Tribunal found arose here and where a generalised threat had crystallised into a specific threat to kill the respondent. In the circumstances where the imputation arose solely because of the Taliban's perception of the respondent's particular truck driving activities as indicating that he was a supporter of the Afghan government and/or foreign aid agencies and where for that reason the Taliban had informed the local council people "to take firm action as soon as possible to get rid of this apostate, criminal person", we consider that the primary judge was correct to find at [105] that, given the Tribunal's specific finding at R[120] that those particular activities gave rise to the Refugees Convention's protection of an imputed political opinion, there was no room to expect or require the respondent to change those activities so as to bring his case within NALZ or the "resolution" of the relocation principle outlined in SZATV. This is all the more so in circumstances where the respondent said that, if he were returned to Afghanistan, he would resume those very same activities in order to support his family and thereby expose himself to the real chance of persecution which the Tribunal had accepted at R[119] confronted him by reason of an imputed political opinion.
67 Thirdly, we do not consider that the majority judgments in NALZ support the Minister's contentions. NALZ involved an Indian national who claimed to have a well-founded fear of persecution owing to suspected connections with the Liberation Tigers of Tamil Eelam (LTTE), a Sri Lankan separatist movement which was an unlawful organisation in India. That suspicion was said to be founded on his involvement in selling electrical goods to the LTTE. During the hearing before the Tribunal, the appellant was asked if he would be safe from harm if he returned to India but refrained from selling electrical goods to Sri Lankan nationals. He responded by saying that that is the work which he liked. The Tribunal was satisfied that the appellant could avoid future arrests by not selling electrical goods to Sri Lankan nationals and it was not unreasonable for him to avoid arrest by so doing.
68 Justices Emmett and Downes dismissed the appeal, while Madgwick J dissented.
69 Justice Emmett rejected the appellant's reliance on S395. His Honour stated at [46] that the following two factors were relevant in considering whether the rationale in S395 applied equally to the circumstances of the appeal:
(a) there was an assumption underlying the majority's approach in S395 that, wherever the relevant conduct under consideration might occur in Bangladesh, the consequences would be the same. No issue of relocation arose in S395, however, Emmett J observed that requiring an asylum seeker to relocate, in circumstances where it was reasonable to do so, did not involve the asylum seeker modifying beliefs or opinions or hiding membership of a particular social group if such beliefs, opinions or membership were the source of persecution; and
(b) there was a clear finding in S395 that homosexual men in Bangladesh constituted a particular social group for the purposes of the Refugees Convention, whereas in the present case, there was no suggestion that the appellant feared persecution by reason of any opinion or belief that he held, nor did he suggest that he feared persecution by reason of his membership of a particular social group.
70 Justice Emmett held that the Tribunal's decision was not inconsistent with S395 because there was no expectation that the appellant would cease behaviour that caused the authorities to impute a political opinion to him or to identify him as a member of a particular social group. Rather, at most, the appellant was expected to cease behaviour that caused the authorities to impute illegal conduct to him. In an important passage at [50], Emmett J stated:
The Tribunal made no finding that the appellant's selling of generators and other electrical goods to Sri Lankan nationals was behaviour that expressed a political opinion or which identified him as a member of a particular social group. The most that the appellant said, when asked why he should not stop selling goods to Sri Lankan nationals, was that it was what he liked to do. As a consequence, the appellant is not expected to cease behaviour that caused the authorities to impute a political opinion to him or to identify him as a member of a particular social group. At most, he is expected to cease behaviour that caused the authorities to impute illegal conduct to him. (Emphasis added in penultimate sentence, original emphasis in final sentence).
71 In a separate judgment, Downes J also dismissed the appeal. In doing so, his Honour distinguished S395 on the bases that having regard to the facts in NALZ:
(a) the expected changed behaviour would avoid creating a wrongful perception of membership of a protected class; and
(b) the conduct involved trading with an unlawful organisation.
72 Justice Madgwick's dissent turned on his Honour's view that the principles established by S395 applied not only to cases of actual but also imputed membership of a Convention class.
73 For the following reasons, we reject the Minister's submission that the majority approach in NALZ applied to the circumstances here so as to distinguish S395. It is convenient to deal separately with the judgments of Emmett and Downes JJ because their reasoning is not identical.
74 No issue of relocation was presented by the facts in NALZ, and Emmett J's reference to the principle of relocation is to be understood in the context of his Honour seeking to reconcile the rationale of the majority judgments in S395 with other cases which did involve a requirement of relocation. The resolution was that, while in a relocation case the asylum seeker was required to do something i.e. relocate where it was reasonable to do so, this did not require the asylum seeker to modify the conduct which is the source of the feared persecution. In SZATV at [94], Kirby J stated that this aspect of Emmett J's reasoning in NALZ "offers an acceptable way of reconciling this Court's holding in S395 with the by now well settled line of authority in Australia and elsewhere, recognising the existence of a consideration of internal relocation, where that course would be reasonable in the country of nationality".
75 The second distinguishing feature identified by Emmett J concerned the fact that, unlike S395, where the two Bangladeshis claimed to be members of a particular social group for the purpose of the Convention, NALZ did not claim that he feared persecution by reason either of any opinion or belief which he actually held or his membership of a particular social group. That is to be distinguished from the position here because the Tribunal accepted in R[115] that the respondent's conduct in transporting construction or building materials gave rise to an imputed political opinion in the eyes of the Taliban. In our view, the Minister's appeal is not supported by Emmett J's judgment in NALZ. The Minister's position is inconsistent with the penultimate sentence in [50] of Emmett J's judgment because it involves an expectation or requirement that the respondent cease the behaviour which is the foundation for the imputed or attributed political opinion. For reasons given above, the Minister's argument is also inconsistent with S395.
76 As to the matters identified by Downes J in NALZ as distinguishing S395 from the circumstances in NALZ, the first distinction was that NALZ did not involve changed behaviour to avoid persecution, but rather changed behaviour to avoid creating a wrongful perception of membership of a protected class. That is not the case here. The Tribunal accepted that the Taliban targets drivers carrying construction materials and that such persons might be imputed with a political opinion supportive of the Afghan government and/or non-governmental aid organisations (see R[115]).
77 The second distinguishing feature identified by Downes J related to the fact that NALZ's problems stemmed from his dealings with persons who were apparently associated with an organisation which was unlawful in India and it was open to NALZ to avoid those problems by choosing not to trade unlawfully. That is not the case here. There was no finding by the Tribunal, or any claim by the Minister, that the respondent's behaviour in transporting construction materials was unlawful.
78 Fourthly, in our view, the Minister's approach in this appeal impermissibly seeks to introduce a test of "reasonableness" into the assessment of whether there is a real chance that the respondent would be persecuted were he to be returned to Afghanistan, which is akin to the test of reasonableness which arises in cases involving relocation. The Minister submitted that alteration of occupation and alteration of the place of residence within the country of nationality, where each would be reasonable in the circumstances and would result in there being no well-founded fear of persecution, ought not to be treated differently. In other words, the Minister submitted that an analogy could be drawn between relocation and requiring the respondent to change his occupation and remain in Kabul.
79 The difficulty with that submission is that the rationale underlying the test of reasonableness in a relocation case does not extend to changing an occupation which gives rise to an imputed political opinion, as is the case here. The rationale was explained by Kirby J in SZATV at [78]:
In each case it is necessary to keep in mind the purpose, under the Refugees Convention, for which the reasonable possibility of relocation is being considered. It is not a free-standing prerequisite to individual entitlements under the Refugees Convention. Those entitlements arise on the refugee applicant's establishing a presence outside the country of nationality owing to a well-founded fear of being persecuted for Refugees Convention reasons. The postulated capacity to relocate is only relevant insofar as it casts light on the question whether the reason for being outside the country of nationality is a "well-founded" fear of the risk of persecution. A propounded "fear" might not be classified as "well-founded" if, instead of seeking protection from Australia, it would be reasonable for the applicant to rely on his or her country of nationality to afford the protection at home by the simple expedient of moving to another part of the country, free of the risk of persecution.
80 As Kirby J emphasised at [97], to consider what is reasonable for an asylum seeker to do by way of internal relocation is not to hypothesise supposedly reasonable conduct which involves modification of behaviour which involves any of the specified Refugees Convention-based grounds of persecution, which it is the object of the Convention to prevent and which S395 forbids (to similar effect, see HJ (Iran) at [20] and [21] per Lord Hope and RT (Zimbabwe) at [19] per Lord Dyson). Acceptance of the Minister's approach here would eliminate that important distinction. We consider that the distinction also applies to conduct giving rise to an imputed Convention ground. It is important in this context not to lose sight of the Tribunal's findings at R[119] and [120], to the effect that the respondent's conduct in transporting construction materials gave rise to an imputed political opinion that he supported the Afghan government and/or non-governmental aid organisations and that he faced a real chance of serious harm or even death if he were again intercepted on the roads by the Taliban. The Tribunal either expected or required the respondent to change his occupation and remain in Kabul notwithstanding that the respondent had said that, if he returned to Afghanistan, he would resume work as a truck driver. The primary judge was correct to hold that the Tribunal's approach was inconsistent with S395.
81 The distinction drawn by Kirby J in SZATV is well illustrated by the facts in that case. The appellant was a Ukrainian national who faced persecution in his home region in Ukraine on account of the expression of his political beliefs through journalism. The Tribunal found that it was reasonable for the appellant to relocate elsewhere in Ukraine and that it was not unreasonable for him to do so notwithstanding that he might not be able to work as a journalist elsewhere in Ukraine because to do so could bring upon him further persecution by reason of his political opinion. The Tribunal found that the appellant might be able to work in the construction industry in Ukraine, as he had done in Australia. The High Court unanimously held that this involved jurisdictional error. Justices Gummow, Hayne and Crennan said that the Tribunal's approach effectively required the appellant to move elsewhere in Ukraine and live "discreetly" so as not to attract the adverse interest of the authorities, lest he be further persecuted, an approach which was inconsistent with S395 (see [28]-[32]).
82 Similarly, Kirby J found that the Tribunal's approach involved jurisdictional error. Not only was that approach at odds with S395, but the Tribunal erred in relying on its finding that the appellant could relocate within Ukraine and also change his occupation so as to avoid persecution. As his Honour stated at [102]:
In this approach, the Tribunal displayed a clear error in its understanding of the purpose of the Refugees Convention which includes that of safeguarding the appellant's right to have, and to express, his "political opinion" in Ukraine and not to be persecuted for it. That right is specifically within the protection of the Refugees Convention. It cannot be a reasonable adjustment, contemplated by that Convention, that a person should have to relocate internally by sacrificing one of the fundamental attributes of human existence which the specified grounds in the Refugees Convention are intended to protect and uphold.
83 Morato is of very limited assistance as that case concerned membership of a particular social group and whether a social group could be defined by reference to the sole criterion that its members were all those who had done an act of a particular character: see Morato at 405.2. Further, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 242-243 Dawson J said of Morato:
The distinction between what a person is and what a person does may sometimes be an unreal one. For example, the pursuit of an occupation may equally be regarded as what one is and what one does. At other times, the distinction may be appreciable but not illuminating. For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts - that the persons involved are parents - is quite central to what they are.
However, I think that Black CJ's remarks were directed more to the situation of a generally applicable law or practice which persecutes persons who merely engage in certain behaviour or place themselves in a particular situation. For example, a law or practice which persecuted persons who committed a contempt of court or broke traffic laws would not be one that persecuted persons by reason of their membership of a particular social group. Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms. Viewed in that way, Black CJ's distinction between what a person is and what a person does is merely another way of expressing the proposition which I have already stated. (Footnotes omitted)
This passage was cited with approval in Chen Shi Hai at [15].
84 As to the Minister's reference to Chen Shi Hai at [26], in our view what was said there is remote from the facts of the present case. Their Honours were dealing with whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons and said that question may necessitate different analysis depending on the particular reason assigned for that conduct. Their Honours continued at [26] and [27]:
The need for different analysis depending on the reason assigned for the discriminatory conduct in question may be illustrated, in the first instance, by reference to race, religion and nationality. If persons of a particular race, religion or nationality are treated differently from other members of society, that, of itself, may justify the conclusion that they are treated differently by reason of their race, religion or nationality. That is because, ordinarily, race, religion and nationality do not provide a reason for treating people differently.
The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups - for example, terrorist groups - which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views - for example, those who advocate violence or terrorism - differently from other members of society.
85 As we have mentioned above, the Minister relies on the respondent's "choice" or his modification of his behaviour that he claimed was the cause of the threats against him, ultimately by ceasing to work as a truck driver, selling his truck and leaving Afghanistan. As noted above, the Minister accepted in oral argument that these actions were motivated by the respondent's fear of persecution arising from the threat made in the Taliban's October 2011 letter. In not considering why the respondent had made the relevant "choices", the Tribunal made the same error as the High Court found in S395: see at [35] and [43] per McHugh and Kirby JJ and at [88] per Gummow and Hayne JJ.
86 This is closely related to the issue of reasonableness. We have already set out, at [54] above, the passage from the joint judgment of McHugh and Kirby JJ in S395 where their Honours said the notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. Their Honours said the fallacy underlying the approach is the assumption that the conduct of the person is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted rather than the threat of harm. We have also set out, at [55] above, the relevant reasoning of Gummow and Hayne JJ in S395. Here, if the respondent chose not to venture out of Kabul this would be because of the Taliban's threat to kill him or have others kill him by reason of what the Taliban saw as the respondent's political opinion. In our opinion the consequence is that the harmful action which gave rise to the well-founded fear of persecution was at the heart of the protected right. In those circumstances, in our opinion the Tribunal's reasoning and conclusion that the respondent could avoid the risk by making a reasonable choice establishes a jurisdictional error.
87 In SKFB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 142, a relocation case referred to by the Minister, the submission which was rejected by the Full Court was that the reasoning in S395 meant that to require a person to live in a safe part of his country, even when it is reasonable for him to do so to avoid persecution, avoids addressing the fundamental question that the Tribunal must consider, namely whether the applicant has a well-founded fear of persecution. The Full Court did not believe that the relocation principle required a person to modify their beliefs or opinions or to hide the fact that they were of a certain racial or national origin or member of a particular social group. If the relocation principle is applied that only means that the putative refugee is not at risk of persecution in his country of nationality. Nothing said by the High Court in S395 cuts across this principle.
88 We see nothing of relevance in SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110, another relocation case referred to by the Minister.
89 The Minister also referred to SZATV, a further relocation case. But it is to be recalled that the plurality said there, at [28], that the Tribunal in S395 had not asked whether "discretion" was the price to be paid to avoid persecution and in that paragraph approved the statement by McHugh and Kirby JJ in S395 at [40] that the Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. It is also to be noted that, even in relation to relocation, the appeal was argued by the Minister as involving the question of whether it was reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution. The plurality said at [24] that what is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
90 We also note that the Minister accepted that the Tribunal did not reject the claim that the respondent was a member of a particular social group of truck drivers who carry construction materials in Afghanistan. Contrary to the Minister's submission that this did not matter because the Tribunal accepted the claim of imputed political opinion, in our opinion it could not be said that the claim did not matter because if that social group were accepted as a matter of fact then carrying construction materials would be an element of that particular social group. In that event the Minister's contention based on the imputed nature of the respondent's political opinion would provide no answer because, it might be said, members of the group had to modify some attribute or characteristic of the group to avoid persecution. This shows that, depending on the facts, any division between the heads under which claims are made under the Convention has a potentially porous nature. We note in this respect that no notice of contention was filed by or on behalf of the respondent seeking to put in issue the reasoning of the primary judge at [123]. Nevertheless, in our opinion, at the level of analysis it shows that, contrary to the Minister's submission, little weight or emphasis can be given to the fact that, in this case, the Tribunal proceeded on the basis of its acceptance that the respondent's political opinion was imputed rather than by reference to his membership of a social group.
91 We note also that if this had been a relocation case, which the Tribunal said it was not, the Tribunal's reasoning may not have contained a sufficient analysis of whether it was reasonable, in the sense of practicable, for the respondent to relocate to Kabul given his economic circumstances: compare SZFDV at [15] and SZATV at [24].