The High Court’s decision in Minister for Immigration and Border Protection v SZSCA will be handed down on 12 November 2014. In expectation of the judgment we wanted to share this piece by Melbourne Law School Professorial Fellow and former Dean and current professor at Michigan Law School, James C. Hathaway, on the December 2013 Full Federal Court decision in the case. This post has been republished with permission from Reflaw.

By Professor James C. Hathaway

The Full Federal Court of Australia recently considered the refugee status of an Afghan who had worked for nearly a quarter century as a jewelry maker in Kabul, before deciding in 2007 to work instead as a self-employed truck driver. Initially, his work consisted of transporting such goods as wood, animal skins, and food across the country. But starting in January 2011, he agreed to begin hauling building materials from Kabul to Jaghori in order to supply reconstruction projects being undertaken by the government and international aid agencies. He took on this new work because “he was paid more” [21], noting that “there was not a lot of work and he had to support his family” [22]. When the Taliban threatened to kill him if he continued to transport building materials used in reconstruction, he fled Afghanistan and advanced a refugee claim in Australia.

The claimant reasonably argued that an adverse political opinion had been imputed to him by the Taliban, and that the Afghan government could not be counted on to shield him from the Taliban’s death threats. The Australian government contended, however, that he could avoid the risk by giving up truck driving and returning to his prior career as a jeweler. Counsel for the applicant countered that the applicant could not be compelled to give up his preferred work, and that if that work gave rise to a risk of being persecuted for reasons of an imputed political opinion, his refugee status should be recognized.

The majority of the Full Federal Court of Australia agreed with the applicant. Understanding the High Court of Australia to have ruled in S395 that a decision-maker “cannot require an asylum seeker to behave in a particular manner” [61] – the only relevant question being “whether an asylum seeker would not in fact behave in a particular matter upon his or her return” [61] – it was held that there was a duty to grant refugee status given the applicant’s unwillingness to resume his work as a jeweler in Kabul.

This decision continues a no doubt well-meaning, but analytically flawed, approach.

By way of background, leading courts have been clear in rejecting the notion that there is any duty on the part of an individual to “be discreet” – more accurately, to conceal or disguise a Convention attribute (race, religion, nationality, social group, political opinion) in order to be safe. The Australian High Court’s trail-blazing decision in S395 determined that “[i]f an applicant holds political or religious beliefs that are not favoured . . . it is not 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.” Much the same view has been adopted by the Supreme Court of the United Kingdom in HJ/HT, and by the Court of Justice of the European Union in X, Y, and Z. I emphatically agree that there can be no duty to conceal a protected characteristic. Indeed, it would undermine the very purpose of refugee protection if an individual were to be required to do so.

But it is a mistake in my view to move from this clearly correct position to contend that there can never be an expectation of a shift in behavior that would avert a risk of being persecuted. As Jason Pobjoy and I argued in Queer Cases Make Bad Law not every action vaguely associated with a protected attribute can reasonably be said to give rise to a risk “for reasons of” that attribute. The UK Supreme Court’s suggestion in HJ/HT that a duty to recognize refugee status might arise on grounds of sexual orientation if the risk stemmed solely from drinking a multicolored cocktail or attending a Kylie concert was, in my view, as substantively wrong as it was predicated on stereotype. While it will sometimes be challenging to distinguish those actions that bespeak a protected characteristic from those that do not, the unequivocal requirement that refugee status be recognized only where there is a causal connection between risk and one of the five Convention grounds requires that judges rise to that challenge. As we showed in Queer Cases, non-discrimination law – the foundation of the Refugee Convention’s “for reasons of” requirement – can usually provide a solid guide for this interpretive exercise.

The dissenting judgment in the Australian Full Federal Court’s SZCSA decision recognized the importance of engaging this issue, and showed the special salience of the need to draw principled lines where risk arises from an imputed, rather than an actual, characteristic. Even as he unequivocally affirmed that there can be no duty to conceal one’s race, religion, nationality, social group or political opinion [6], Justice Flick rightly insisted some forms of behavior are not protected by the Refugee Convention:

It is clearly inappropriate to require claimants to “hide” their anti-government political views, or to be “discreet” about their homosexuality. The protection afforded by the Convention would be seriously diminished if it were otherwise. But the Convention does not relevantly seek to provide a right to engage freely in behaviour unrelated to the specified category of protection, when such behaviour may result in the imputation of a particular political opinion [9].

This must surely be correct. In this case, the applicant had no relevant political opinion – he was working as a truck driver rather than as a jeweler because he could make more money. He switched his cargo to building supplies because that made him more money still. There is, of course, nothing wrong with seeking to maximize one’s economic opportunities. But to suggest that a foreign country has a duty to protect a person who could readily avert the imputation of a political opinion by returning to his former trade (even if at some economic cost) makes no sense.

Nor is this an essentially benign analytical error. Most obviously, it would be tragic if the deeply principled rejection of any duty to hide a fundamental characteristic were to be called into question by its elision with the suggestion that the duty of protection is essentially boundless. But more generally, it is important that we not lose sight of the fact that state parties to the Refugee Convention did not agree to assume a duty of surrogate protection in every case in which there is a risk of even very serious harm, but rather only where the reason for the risk of serious harm is one that is sufficiently fundamental that it resonates within the framework of non-discrimination law. Given the increasing fragility of the commitment to refugee law, we ignore that point of principle at our peril.

James C. Hathaway is a Professor in Refugee and Asylum Law at the University of Michigan.

This post has been republished with permission from Reflaw. Opinions on High’s standard reprint permission does not apply to this piece. Please cite this post as: James C. Hathaway, ‘The Conundrum of Concealment: Minister for Immigration and Border Protection v. SZSCA, [2013] FCAFC 155 (Aus. Full Federal Court, Dec. 10, 2013)’ on Reflaw (1 October 2014) <http://www.reflaw.org/the-conundrum-of-concealment-2/>.

James C. Hathaway, the James E. and Sarah A. Degan Professor of Law and Director of the Program in Refugee and Asylum Law at the University of Michigan since 1998, is a leading authority on international refugee law whose work is regularly cited by the most senior courts of the common law world. He is also Distinguished Visiting Professor of International Refugee Law at the University of Amsterdam and Professorial Fellow of the University of Melbourne. From 2008 until 2010 Hathaway was on leave from the University of Michigan to serve as the Dean of Law and William Hearn Professor of Law at the University of Melbourne, where he established Australia’s first all-graduate legal education program. He previously held positions as Professor of Law and Associate Dean of the Osgoode Hall Law School, Canada (1984-1998), Counsel on Special Legal Assistance for the Disadvantaged to the Government of Canada (1983-1984), and Professeur adjoint de droit at the Université de Moncton, Canada (1980-1983). He has been appointed a visiting professor at the American University in Cairo, and at the Universities of California, Macerata, San Francisco, Stanford, Tokyo, and Toronto. Hathaway’s publications include more than eighty journal articles and chapters, a leading treatise on the refugee definition (The Law of Refugee Status, second edition 2014 with M. Foster; first edition 1991 republished in both Japanese and Russian); of an interdisciplinary study of models for refugee law reform (Reconceiving International Refugee Law, 1997); and of The Rights of Refugees under International Law (2005), the first comprehensive analysis of the human rights of refugees set by the UN Refugee Convention. He is Counsel on International Protection to the U.S. Committee for Refugees and Immigrants and Senior Advisor to Asylum Access, a non-profit organization committed to delivering innovative legal aid to refugees in the global South. Professor Hathaway regularly advises and provides training on refugee law to academic, non-governmental, and official audiences around the world.