Federal Court (Full Court). Till 2014, Migration Act 1958 defined "refugee" by reference to the "Convention", under which a person was not a refugee if it would be reasonable to relocate to a place in their home country where they would not be persecuted (the relocation principle). Since 2014, the Act has defined a "refugee" as a person whose "real chance of persecution relates to all areas of a receiving country", among other things (s 5J(1)(c)). The FCAFC accepted that the relocation principle no longer applies to the definition of "refugee". However, does the reference in s 5J(1)(c) to all areas of a receiving country mean all areas where there is safe human habitation and to which safe access is lawfully possible?
The questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: It was common ground in these appeals that the relocation principle still applied to the complementary protection provision under the Migration Act 1958 (Cth), namely s 36(2)(aa). Is the "reasonableness of relocation ... to be adjudged by undertaking an assessment of the observance of basic rights in the claimed safe place when compared to the observance of such rights in the place where asylum was sought"?
Question 2: Can it be said that "[t]he use of the same words as are to be found in an international convention or treaty may manifest an intention that within the domestic legislative instrument the words are to be given the same acquired meaning as they have been understood to hold when used in the international instrument"?
Question 3: Can it be said that, "where there is ambiguity, a construction which accords with the obligations of Australia under an international treaty should be favoured, at least where there is a basis to conclude that the law was intended to give effect to those obligations"?
Question 4: Can it be said that "the reference in s 5J(1)(c) to all areas of a receiving country ... should be construed to mean all areas of a receiving country where there is safe human habitation and to which safe access is lawfully possible"?
Question 5: What is the "extent to which a requirement that the real chance of persecution must relate to all safe, humanly habitable areas of a receiving country to which safe access is lawfully possible leads to outcomes in particular cases that are different to the 'viable or realistic alternative' relocation requirement approved in Januzi and CRI026"?
Question 6: Can it be said that "persecution 'relates' to an area if it is an area to which a person cannot reasonably relocate in a practical sense", with the result that "if it is not reasonable for a refugee to relocate internally then the real chance of persecution 'relates to all areas of a receiving country'"?
Question 7: Can it be said that, as each appellant had also made complementary protection claims and the relocation principle was assessed by the Immigration Assessment Authority (IAA) in the context of the complementary protection adversely to the appellants, any errors made by the IAA in the context of assessing the relocation principle for the purposes of the definition of "refugee" was not material and therefore not jurisdictional?
The FCAFC answered those questions as follows: