The High Court, Internal Relocation and Complementary Protection: Examining the Case of CRI 026 v Republic of Nauru – Esther Pearson

The ability of an applicant for refugee status to relocate within their country of origin to escape persecution forms the basis of an important concept in international refugee law, known variously as the “internal relocation alternative”, “internal flight alternative”, “subsidiary protection” or “humanitarian protection”. The concept provides that if internal relocation is relevant and reasonable, the applicant is not a refugee. The concept is not codified in the Convention Relating to the Status of Refugees, however, it is relevant to the question of whether the applicant meets the definition of “refugee” as set out in Art 1A(2) of the Convention, as being any person who:

As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

The existence of an internal relocation alternative is relevant to whether the applicant has a “well-founded fear of being persecuted”, or is “unable… to avail himself of the protection of that country” (see UNHCR, “Internal Flight or Relocation Alternative” in the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees at [2]-[3]). The concept has been enshrined in the domestic law of many states. It is therefore uncontentious that the concept is a relevant, and in some states, mandatory, consideration when determining an application for refugee status.

However, whether the concept applies when determining a claim for complementary protection remains contentious. The concept of complementary protection recognises that an applicant should not be returned to his or her country of origin if it would expose the applicant to harm prohibited by the fundamental human rights treaties ratified or signed by the host state, for example, the International Covenant of Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and doing so would result in the host state violating its obligations under the treaties. In Australia, the European Council, United Kingdom, Ireland and Canada, legislation has been enacted providing that an applicant does not qualify for complementary protection if an internal relocation alternative exists within their country of origin. In other jurisdictions, including the developing jurisdiction of Nauru, there is no such statutory limitation and the question of applicability of the concept falls to be determined by reference to other international authority.

The Supreme Court of Nauru explored the issue in detail in ULA 007 v Republic of Nauru. The appellant originated from Afghanistan and applied for refugee status and complementary protection on the basis of a fear of harm from the Taliban due to his involvement with the Afghanistan National Army, his Hazara ethnicity, and Shi’a Muslim religion. The Nauru Refugee Status Review Tribunal (the “Tribunal”) found that, while the appellant may have a well-founded fear of persecution in his home area for a Convention reason, the appellant could practically, safely and legally relocate to Kabul. The Tribunal considered this to also be relevant to the assessment of the appellant’s complementary protection claims, and gave weight to Black CJ’s comments in Randhawa v Minister of Immigration, Local Government and Ethnic Affairs that it would be anomalous to require the international community to provide complementary protection to an applicant where real protection could be found in the applicant’s country of origin.

Upon appeal, Crulci J of the Supreme Court of Nauru found that the Tribunal was correct to take this approach. Amongst other authorities, her Honour referred to a strong line of authority from the European Court of Human Rights providing that Contracting States to the European Convention of Human Rights are not precluded from relying on an internal flight alternative in assessing whether an applicant is owed protection under Article 3, which enshrines the prohibition against torture or inhuman or degrading treatment or punishment: see, eg, Salah Sheekh v The Netherlands.

In CRI 026 v Republic of Nauru, the appellant, a self-represented litigant, asserted that the Tribunal misapplied the principles of internal relocation in finding the appellant could reasonably be expected to relocate elsewhere in Pakistan, and this disentitled the applicant from refugee status or complementary protection. Crulci J considered that the Tribunal Decision Record disclosed no such error, and the decision was appealed to the High Court of Australia.

The High Court, sitting as a bench of three comprising Kiefel CJ, Gageler and Nettle JJ, delivered judgment on 16 May 2018, and found against the appellant, noting (at [49]):

the weight of international jurisprudence in favour of the relevance of reasonable internal relocation to the assessment of complementary protection, the apparent absence of any international jurisprudence to the contrary, and the evidence logic and common sense of regarding reasonable internal relocation as relevant to complementary protection”.

In reaching this finding, the High Court turned to authority of the European Court of Human Rights on Article 3 of the European Convention (at [27]-[31]), and of the United Nations Human Rights Committee (“UNHRC”) on Article 2 of the ICCPR, which entitles all persons to the various rights enshrined in the Convention (at [32]-[37]). The High Court noted that a general comment of the UNHRC provides that Article 2 of the ICCPR obliges States Parties to refrain from removing persons to states where there are “substantial grounds for believing that there is a real risk of irreparable harm” prohibited by other articles of the Convention. The High Court reasoned that (at [43]):

given that a person who is outside his or her country of nationality is considered to be not unable to obtain the protection of that country if able to obtain protection at a place within that country to which he or she can reasonably relocate, parity of logic dictates that, if by reasonable relocation to that place the person can avoid risk of harm of the kind identified in Arts 6 and 7 of the ICCPR, it should not be seen as a necessary and foreseeable consequence of the person’s refoulement to that place that he or she will be at risk of that kind of harm”.

The often-cited authority in support of the absence of any internal relocation test to complementary protection, Minister for Immigration and Citizenship v MZYYL, was also considered by the High Court. In that case, Lander, Jessup and Gordon JJ said “the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country” (at [18]). However, as the High Court explains, these comments were made in the context of a discussion of why authority on the interpretation of international treaties is of little benefit in interpreting the Migration Act 1958 (Cth), given the codification of the complementary protection regime in that Act, and such comments are not authority for the proposition that the internal relocation alternative is inapplicable to an assessment of complementary protection claims.

The High Court also struck down the appellant’s arguments that the internal relocation alternative could not apply to complementary protection as it would burden the applicant with the insurmountable task of establishing there is no place in his or her country of origin to which he or she could reasonably relocate (at [38]-[39]), and that denying an applicant complementary protection because the existence of an internal relocation alternative would deny the applicant his or her freedom of movement under Article 12 of the ICCPR (at [44]-[48]).

The High Court appeals of DWN 027 v Republic of Nauru, and EMP 144 v Republic of Nauru, contained a ground of appeal mirroring that in CRI 026 v Republic of Nauru, and judgment on those appeals was delivered on the same day, rejecting those grounds of appeal for the same reasons. These judgments sit squarely with international jurisprudence on the matter and the weight of international authority now sits in favour of the incorporation of an “internal relocation” test in the assessment of complementary protection claims. Thus, while it may be beneficial for the purposes of removing any doubt to enact legislation, as done in Australia and elsewhere internationally, this may not be necessary. Given that the rationale for international refugee law is to give shelter to those who are unable to find protection within their country of origin (see Hathaway, The Law of Refugee Status, 1991 p 127-8), and the purpose of complementary protection is to fill voids left by refugee law where an applicant may be at risk of torture or serious human rights violations, an interpretation of the concept of complementary protection that embraces the internal relocation alternative would seem to be most in keeping with the rationale for international refugee law, and ensure protection is given to those who need it most.