James C Hathaway, ‘The Conundrum of Concealment: Minister for Immigration and Border Protection v SZSCA‘ (9 November 2014) (reposted from Reflaw)

A majority of the High Court has dismissed the Minister for Immigration and Border Protection’s appeal against the decision of the Full Federal Court in SZSCA. SZSCA fled Afghanistan after the Taliban threatened to kill him in retaliation for working as a truck driver for various aid agencies. The Refugee Review Tribunal affirmed the decision of the Minister to refuse to grant SZSCA a protection visa. The primary judge upheld SZSCA’s application for a review of the RRT decision, and held that the RRT fell into jurisdictional error by expecting that SZSCA would avoid harm by changing occupations. Central to that decision was the application of S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, in which a majority of the High Court held that whether an asylum seeker could live in the country of origin without adverse consequences was not a relevant consideration. A majority of the FCAFC dismissed the Minister’s appeal, rejecting the argument that the primary judge misapplied S395.

The majority (French CJ, Hayne, Kiefel and Keane JJ) held that the RRT here did not make the error identified in S395 of diverting its attention from the question of whether SZSCA would face a real chance of persecution if return to Afghanistan. Rather, the RRT did focus on these questions in finding that he would not face a real chance of persecution if he remained in Kabul and did not travel between Kabul and Jaghori; and in finding that the would face a real chance of persecution if he carried construction material outside Kabul (at [18]). The error of law instead lay in the RRT’s failure to consider the internal relocation principle, outlined in SZATV v Minister for Immigration and Citizenship [2007] HCA 40: a person is not a refugee if that person can gain the real protection of his/her country of nationality by relocating to a different part of that country (at [21]). Here, the RRT did not consider the possibility of relocation on the basis that he lived in Kabul. It should have moved beyond examining just the living conditions in Kabul to consider the impact of SZSCA remaining in Kabul and not driving trucks on roads he ordinarily frequented in the course of his business (at [31]). Gageler J would have allowed the appeal, holding that the RRT was correct in focusing solely on the question of whether it would be reasonable for SZSCA to live and work in Kabul only (see at [46], [50]).