Case: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634
Outcome: applied
The definition of 'refugee' 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) 237 ALR 634 ('SZATV') at [16]). 33 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 Yee Kin v The Minister for Immigration and Ethnic Affairs (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]). 35 Because it is the primary responsibility of the country of nationality to safeguard fundamental human rights and freedoms, the international responsibility has been described as a form of 'surrogate protection'. 'Protection' in that sense has a broader meaning than the narrower sense in which the term is used in Art 1A(2) but, so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [20]. See also per Gummow, Hayne and Crennan JJ in SZATV at [20]). 36 It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-2, 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).