Consideration
28 The question of relocation arises when a claimant for refugee status, having a well-founded fear of persecution in his or her home region, can nevertheless avail himself or herself of real protection elsewhere within that person's country of nationality: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-441; Whitlam J agreeing at 453. In those circumstances, subject to the reasonableness of relocation, the claimant is not a "refugee" for the purposes of Article 1A(2) of the 1951 Convention, as amended.
29 This notion, referred to variously as "the relocation principle", "the internal protection principle" and "the internal flight alternative", amongst other descriptions, was discussed in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. In that case the plurality (Gummow, Hayne and Crennan JJ, with whom, on this topic, Callinan J agreed) said (at [19]) that the matter of relocation finds its place in the Convention definition of "refugee" by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department [2006] 2 AC 426.
30 In that case his Lordship (at [7]) said:
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 not 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.
31 The principle requires, as the above passage makes clear, that the relocation be reasonable. In Randhawa Black CJ (at 442) referred to reasonableness, in this context, as "a practical matter" that extends beyond physical or financial barriers. In this connection his Honour quoted the following passage from page 134 of Professor Hathaway's work The Law of Refugee Status (Butterworths, 1991):
The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.
32 In SZATV the plurality (at [24]) said:
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.
33 Their Honours went on to observe, however, that the Convention is concerned with persecution in the defined sense and not with living conditions more broadly. Apart from persecution, the Convention is not directed, for example, to "differential living standards in various areas of the country of nationality, whether attributable to climatic, economic or political conditions": see at [25].
34 Lord Bingham's reference in Januzi to a claimant's well-founded fear of persecution at a place "where he lived" was seized upon by the appellant's counsel in oral submissions to advance an argument to the effect that the notion of relocation, and hence the requirement of "reasonableness", always arises if the place of return is different from the place of persecution. This argument was developed in the following way: (a) the appellant lived in Helmand province where he had a well-founded fear of persecution; (b) the IMR reasoned that the appellant could be returned to Jaghori district in Ghazni province; (c) even though the IMR had found that Jaghori was the appellant's own home district, it was nevertheless necessary for the IMR to consider whether it was "reasonable" for the appellant to return there; (d) the IMR did not consider that question of reasonableness.
35 The authorities brought to my attention in which the relocation principle has been discussed all seem to proceed on the basis that relocation arises when the claimant's well-founded fear of persecution is with respect to a place that can be described as the claimant's own home region and that the option of relocation is one directed to an area within the country of nationality that cannot be described as the claimant's own home region. It is in this context that the specific requirement of "reasonableness" has come into play. This position is exemplified, for example, in Randhawa and SZATV (and the cases referred to therein), as well as in Januzi. In each case the question was whether it was reasonable for the claimant to be relocated to a place within the country of nationality that was not the claimant's home region.
36 In Fadil Dyli v Secretary of State for the Home Department [2000] Imm AR 652 the rationale for, and application of, the "relocation principle" were discussed by the Immigration Appeal Tribunal in the United Kingdom in the following terms:
32. It may be assumed that a person who fears persecution will seek protection within his own country first. The signatories to the Convention expect him to, because his own country has obligations to him arising out of his citizenship or residence: it is only if his own country fails him that the surrogate protection of the international community is engaged through the medium of the Convention. Thus arises the notion of "internal flight". By the time a person's status as a refugee comes to be considered, however, internal flight is no longer a possibility. The claimant is already outside the country of his nationality or former habitual residence. But the principle remains. He is not entitled to be considered as a refugee merely because he has a well-founded fear of persecution in some part of his own country, if there are other parts of that country where he would be safe from persecution.
33. A person cannot be removed to a place where he is at risk of persecution. But if he is at risk of persecution in his own home area, he can be expected, on return to his own country, to live in a different area, in order to avoid the risk. There will then be no breach of the Convention in returning him to his own country, despite the risk of persecution in part of it. At this point two further factors enter the equation. The first is that, even if there is a safe area, he cannot properly be returned to his own country if he cannot reach the safe area, or if he cannot do so without being at risk of persecution on the way there - either immediately on arrival or on his subsequent journey within the country. Secondly, he cannot be returned if the safe area is one in which it would be unreasonable or unduly harsh to expect him to live. This is the factor described by Brooke LJ as tempering the definition of a refugee "with a small amount of humanity" (Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271 at 279).
34. Thus the expectation of internal flight is transformed into a rule of internal relocation: on return to his own country a person may have to live in an area that is different from his own home area. It is, however, important to remember the origins of the rule. The question of internal flight only arises when a claimant has a well-founded fear of persecution in his own home area. If he has no such fear there, the possibility of his movement elsewhere simply does not arise. He is not a refugee. If, on the other hand, he has such a fear in his own home area, he may be a refugee: but only if he can show that there is no other part of his own country where he would be safe, which he can reach in safety, and where it would be reasonable (that is to say, not unduly harsh) to expect him to live. A person who has discharged the positive burden of showing that he is at risk of persecution in his own area has still to establish that internal relocation is not feasible in his case.
35. The concepts of reasonableness and undue harshness have to deal with a person who will have to move to an area that has not been his home. No questions of unreasonableness or undue harshness arise if the claimant has no well-founded fear of persecution in his own area. That is so even if there are other areas of his country where he might have such a fear. Such a person will be a refugee only if he cannot reach his own area without being at risk of persecution on the way.
37 In Gardi v Secretary of State for the Home Department [2002] 1 WLR 2755 Keene LJ (with whom Sir Martin Nourse and Ward LJ agreed) accepted (at [27]-[28]) as accurate the statement in Dyli that the question of internal flight only arises when a claimant has a well-founded fear of persecution in his own home area. See also Canaj v Secretary of State for the Home Department [2001] INLR 342 at [28]-[32] per Simon Brown LJ (with whom Chadwick and Longmore LJJ agreed) where his Lordship posed the question: Why ever should it be "unduly harsh" [unreasonable] to expect a claimant to return to live in his own home area once it is accepted that it is safe for him to do so?
38 I propose to apply the statement of principle in Randhawa by Black CJ (at 440-441) which plainly proceeds on the basis that the relocation principle concerns relocation from a claimant's home region to another place in the claimant's country of nationality that is not the claimant's home region. This position is supported by the United Kingdom authorities to which I have referred. In proceeding on this basis I do not think that the reference in the cases to "home region" or "home area" (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a "home region" or "home area" is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a "home region" or "home area" of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a "home region" or "home area" are matters of fact.
39 The respondent Minister relied on these authorities before the Federal Magistrates Court and on this appeal to submit that, in the present case, the relocation principle has no relevant application because the IMR had found that: (a) Jaghori was the appellant's own home district and that (b) the appellant had no well-founded fear of persecution in that place.
40 This submission found favour with the presiding Federal Magistrate. His Honour's acceptance that the relocation principle had no relevant application so far as the appellant's return to Jaghori was concerned no doubt led him to conclude that the fourth ground of the application was, in substance, an impermissible challenge to the IMR's factual finding that Jaghori remained the appellant's home district. I am not persuaded that the presiding Federal Magistrate erred in that regard. The premise of the fourth ground in the application before his Honour was that the appellant's return to Jaghori was an issue of relocation, not merely one of return. However, the appellant's return to Jaghori would only be an issue of relocation if, contrary to the IMR's finding, Jaghori was not the appellant's home district. Thus the appellant's attempt to demonstrate that the IMR erred by failing to treat the issue of his return to Jaghori as one of relocation depended critically on the appellant also demonstrating that the IMR erred in finding that Jaghori was the appellant's home district. Indeed, the particulars to the fourth ground are explicit in attributing error to the IMR on the basis that "any move by the [appellant] to Jaghori would not be a return to his home district but a relocation from Helmand …". At its core, therefore, the fourth ground challenged the IMR's finding that Jaghori was properly to be regarded as the appellant's home district. This conclusion is fatal to the appellant's appeal. In essence his fourth ground impermissibly sought a merits review of the IMR's factual finding.
41 Quite apart from this conclusion, I am not persuaded that the IMR did not, in any event, consider the reasonableness of the appellant's return to Jaghori in light of the matters that the appellant chose to put before the IMR in that regard.
42 In this connection I have already noted that the IMR specifically raised with the appellant the possibility of his return to Jaghori and the appellant's response to that possibility. I have also noted that the IMR specifically undertook to consider any further material or submissions provided by the appellant. No further submissions or other material were provided in response to the IMR's implicit invitation.
43 In Randhawa Black CJ (at 443) observed that the extent of a decision-maker's task in considering a true question of relocation will be largely determined by the case sought to be made by the claimant. In SZMCD the Full Court (at [124]) said that the answer to the question whether relocation is practicable "depends upon the framework set by the particular objections raised to relocation".
44 Here the appellant did not advance, as matters to be considered by the IMR, those matters raised by way of argument in the present appeal as relevant considerations to be taken into account on the question of reasonableness, even though the question of the appellant's return to Jaghori had been squarely raised at the time of interview, accompanied by an invitation to the appellant to provide further submissions and material. The IMR was left with only the matters that the appellant had then placed before him concerning his situation. The IMR's reasons plainly show that he considered those matters, as well as the fact that the appellant was born and had lived in Jaghori for approximately 40 years, where he worked on the family farm, and that his association with Helmand province was only for about 18 months when the events concerning the Pashtun landowner occurred. In the present case the appellant advanced as the principal objection to his return to Jaghori his concerns about security from harm by the Pashtun landowner. The IMR rejected those concerns, as a matter of fact, insofar as the appellant said that he would not be safe in Jaghori.