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. Continue reading →