OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Januzi (FC) (Appellant) v. Secretary of State for the Home Department and Others
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Januzi (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
Hamid (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
Gaafar (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
Mohammed (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
 UKHL 5
LORD BINGHAM OF CORNHILL
The closing words of the definition, applicable to stateless persons, have no immediate application to the appellants, all of whom have a nationality. In each of their cases the relevant persecution is for reasons of ethnicity, which is a reason falling within the Convention.
The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
The ground of refusal would be that the person is not, within the Convention definition, a refugee. It is not in contention between the parties that reasonableness is the test to be applied when deciding whether a relocation alternative is open to an applicant for asylum. But the parties are sharply divided on how the test should be applied, and in particular on whether a person can reasonably be expected to relocate when the level of civil, political and socio-economic human rights in the place of relocation is poor. The appellants submit that he cannot.
This passage was quoted by Keith J for the New Zealand Court of Appeal in Butler v Attorney-General  NZAR 205, para 32, who went on to hold in para 50 that
In Refugee Appeal No 71684/99  INLR 165, the Refugee Status Appeals Authority of New Zealand, while acknowledging in para 57 "that no uniform and ascertainable standard of rights for refugees has emerged on which States parties to the Refugee Convention are agreed", carried the Court of Appeal's approach a further step. Having made reference to some of the rights which member states bind themselves to extend to those accepted as refugees, they continued in paras 60-61:
The court's approach to test (d) has not been found to be wholly clear (see H Storey, "The Internal Flight Alternative Test: The Jurisprudence Re-examined," (1998) 10 International Journal of Refugee Law, 499, 529), and when one of the authors of the Robinson judgment came to summarise its effect in Karanakaran v Secretary of State for the Home Department  3 All ER 449, 470 he made no reference to the level of civil, political and socio-economic human rights in the place of relocation. But on its face Robinson appears to lend support to the appellants' argument. Support is also derived from the conclusions of the expert roundtable organised by the UN High Commissioner for Refugees and the International Institute of Humanitarian Law in San Remo in September 2001: the level of respect for human rights in the proposed place of relocation was in their opinion relevant to an assessment of its availability.
In Ranganathan v Canada (Minister of Citizenship and Immigration)  2 FC 164, the Federal Court of Appeal (per Létourneau JA, with the assent of his colleagues) said, with reference to Thirunavukkarasu:
In paragraphs 23-24 of its judgment the court said
The court cited Professor Hathaway's observations quoted above, and also a passage in Professor Goodwin-Gill's work on The Refugee in International Law, 2nd ed (1996), p 74, and continued in paragraph 38:
The court considered the leading authorities in Canada, New Zealand and this country (including Robinson, which it declined to follow on somewhat questionable grounds: para 66), but was not persuaded to a different view. It concluded, in paragraph 67:
This imposes a standard significantly lower than the rule would require.
They then address economic survival in paragraphs 29-30:
These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality. Helpful also is a passage on socio-economic factors in Storey, op cit, p 516 (footnotes omitted):
There can, however, be no absolute rule and it is, in my opinion, preferable to avoid the language of presumption. The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of the persecution giving rise to the claimant's well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department  EWCA Civ 74  1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.
LORD NICHOLLS OF BIRKENHEAD
LORD HOPE OF CRAIGHEAD
Mr Januzi's case
The cases of Messrs Hamid, Gaafar and Mohammed
(a) Mr Hamid
(b) Mr Gaafar
(c) Mr Mohammed
(d) The cases of Messrs Hamid, Gaafar and Mohammed in the Court of Appeal
The issues of law
Disposal in Mr Januzi's case
Disposal in the cases of Messrs Hamid, Gaafar and Mohammed
It may be seen, as Lord Bingham has pointed out (para 7 above) that the text of the Convention does not directly address the issue of return to safe relocation areas. That persons seeking asylum may be so returned has, however, been recognised for a number of years, as appears from the sources cited by Lord Bingham at paras 7 and 8 of his opinion. Nor is there any explicit reference to the qualification, whose validity is also generally accepted, that they are not to be returned if to do so would be unduly harsh.
It has received some support from courts in New Zealand and Australia: see the authorities cited in paras 9 and 10 of Lord Bingham's opinion.