Case: SZATV v Minister for Immigration and Citizenship [2007] 233 CLR 18
Outcome: referred to
definition of 'refugee' in the Convention is couched in the present tense, and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example, by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; [2007] 233 CLR 18 ('SZATV') at [16]). The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-572 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572). The so-called 'relocation principle' was considered by Gummow, Hayne and Crennan JJ in SZATV at [9] - [22]. At [11] their Honours observed that any notion of 'relocation' and of the 'reasonableness' thereof is to be derived, if at all, as a matter of inference from the more generally stated provisions of the definition of 'refugee' contained in the Convention. At [24], their Honours said: '24 ... 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.' In SZATV the Tribunal had considered that the appellant could reasonably have relocated within Ukraine. The effect of the Tribunal's stance was that the appellant in that case was expected to move elsewhere in Ukraine and live 'discreetly' so as not to attract the adverse interest of the authorities in his new location lest he be further persecuted by reason of his political opinion. The High Court ordered that the decision of the Tribunal be quashed and that the appeal from the decision of the Federal Court on an appeal from the Federal Magistrates Court of Australia be allowed. Application of relevant principles to the present case The first applicant is a non-citizen in Australia who is a citizen of India. The second appellant is a non-citizen in Australia who is the spouse of the first appellant. She does not contend that she is a person to whom Australia has protection obligations under the Convention. The appellants arrived in Australia on 4 March 2008 having left India on the previous day. They each travelled on passports issued by the Indian government and entered Australia relying upon three month visitor visas. On 17 April 2008 the appellants applied for Protection (Class XA) visas. On 3 July 2008 a delegate of the Minister decided that the application of the appellants for protection visas should be refused as their claims did not meet the requisite criterion for a protection visa set out in s 36(2) of the Act.