FEDERAL COURT OF AUSTRALIA SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 SZBPM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR NSD 1405 of 2005 ALLSOP J 17 MARCH 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1405 of 2005 ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE BETWEEN: SZBPM APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 17 MARCH 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The parties file within fourteen days any submissions on the issue raised in [28] to [31] of the reasons for judgment. 2. The proceeding be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1405 of 2005 ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE BETWEEN: SZBPM APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: ALLSOP J DATE: 17 MARCH 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal against orders made by the Federal Magistrates Court dismissing an application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) against a decision of the Refugee Review Tribunal (the "Tribunal") made on 26 August 2003 and handed down on 23 September 2003. The Chief Justice has given a direction under s25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal be heard by a single Judge. There is one further issue to which the parties have directed no attention. I propose to allow the parties to address me on it. Apart from this issue, I would dismiss the appeal. I thought it appropriate to deal with all matters argued leaving the one issue which I have identified for the consideration of the parties. 2 By way of history, there had been an earlier Tribunal decision in 2001. This had been set aside by consent shortly prior to hearing before a Judge of this Court. The Judge, at the time of making the orders by consent, distributed a draft judgment which set out views, necessarily of a preliminary nature given that the parties had not been heard, as to the matter. It is necessary to recount this fact because in the primary application before the Federal Magistrate the grounds of jurisdictional error were stated to be the failure of the Tribunal (on the second occasion) to follow what the learned primary judge had said in his draft reasons. The arguments have since moved on and I will deal with the merits of the matter put to me. However, it should be clear that the draft judgment of his Honour has no particular status (as can be seen from the above circumstances in which it arose). 3 The appellant is a female Fijian of Indian ethnicity. The Tribunal dealt with applications by the appellant, her husband and two children. The only claims made under the Convention for protection were propounded by the appellant. The claims of her husband and children were sustainable only on the basis of her application. Only the appellant was a party to the proceedings below as applicant and only the appellant moves the Court on this appeal. 4 The Tribunal approached the matter on the basis that it accepted for the purposes of analysis all that the appellant said about her history in Fiji. The basis for the affirmation of the delegate's decision was a view that the available State protection in Fiji was such as to deny the conclusion that the appellant had a well-founded fear of persecution. That said, it is appropriate to look at the claims of the appellant. 5 The appellant was born in Fiji in 1962. She had eleven years of education, including to tertiary level. She worked in Nadi as a machinist and later as a travel consultant. The appellant claimed that in July 2000, which was at a time of considerable political and racial turmoil in Fiji, she was attacked in her home by an indigenous Fijian man. She claimed that the man entered the house while she was alone, threatened her with a knife, and forcibly sexually assaulted her. She was taken to hospital and received treatment. She said that when she and her husband attempted to report the matter to police they were chased from the police station and yelled at to the effect that they were not wanted in Fiji. The appellant also claimed that she had been robbed when she was shopping by indigenous Fijians. She claimed that her children had been harassed and bullied by indigenous Fijians at school. The appellant claimed that she had nightmares and problems with her husband because he thinks that she is the victim of rape. There were opportunities given which were taken at the hearing to provide further material to the Tribunal as to the state of affairs in Fiji. The appellant also gave further information at the hearing about difficulties she and her family had in Fiji. 6 The findings of the Tribunal as to the acceptance of the appellant are contained in [51] and [52] of the Tribunal's reasons which are in the following terms: I have been able to reach a decision in this matter on the basis of an assumption that the applicant's claims are true and that she is genuinely in fear of returning to Fiji, although it has not been necessary for me to make any definite determination of the truth or otherwise of the applicant's claims. By this I do not intend to suggest that I have any particular doubts about the applicant's claims or the genuineness of her fears, merely that it has not been necessary for the disposition of this matter to come to a concluded view about these matters. I have also not found it necessary to make any definite finding as to whether the harm that the applicant claims to have experienced and claims to fear recurring if she returns to Fiji was, or would in the future be, motivated by an attribute of the applicant which is referable to a Convention ground. The applicant clearly believes that the mistreatment she experienced in Fiji in July 2000 during the height of the unrest associated with the failed Speight coup was because of her Indo-Fijian ethnicity. Whereas this may be so, it is not necessary for me to make a finding on this aspect of the matter because I am satisfied that even if the applicant's claims are true and even if her fears of a recurrence of harm are genuine and even if such harm is attributable to a Convention reason on the part of the person who caused her harm, nevertheless the Fijian government does not condone such mistreatment nor is the Fijian government unwilling or unable to protect the applicant from such harm. 7 The Tribunal accepted that between 1987 and mid-2000 Fiji experienced civil and communal unrest in which ethnicity and political opinion were significant elements. It accepted that there were inter-ethnic tensions which led to incidents of threats, harm and intimidation between and within different ethnic groups, in particular as a result of the failed coup led by George Speight. It accepted that Fiji went through a period of considerable political uncertainty in the aftermath of this coup, including judicial consideration of the legality of the interim government and of the abrogation of the Constitution. However, the Tribunal found that the political and ethnic unrest ceased in July 2000 and since that time the governmental structures in Fiji have managed to reconstruct a functioning and democratically elected government which resolves political disputes through recourse to the courts or to the electors. 8 The Tribunal at [53] – [59] of its reasons considered the position in Fiji and concluded that the Fijian State and authorities would not withhold effective protection from the appellant from harm which might be inflicted by members of Fiji's indigenous community because of the appellant's ethnicity or for any other Convention reason. The Tribunal concluded that the evidence available to it indicated that law and order has been re-established in Fiji, that the police and army have succeeded in restoring confidence in public safety and that the democratically elected government which has civilian control of the police and security forces is committed to stability peace and tolerance regardless of ethnic or other background or political opinion. The Tribunal said that it had given weight to consistent reports from the Department of Foreign Affairs and Trade ("DFAT") concerning the position in Fiji. The Tribunal said that though the police were relatively ineffective during the disturbances in 2000 and immediately thereafter it was not satisfied that this is a continuing situation or that there is any basis on which to conclude that the improvement experienced so far is likely to reverse in a reasonably foreseeable future. The Tribunal concluded that it was not satisfied that Indo-Fijians were denied their basic rights or that persecution or mistreatment of them is permitted or condoned by the security authorities or the Fiji government. The Tribunal was satisfied that Indo-Fijians do not face a real chance of persecution by the elected government or other authorities. 9 The Tribunal accepted that crime was a serious problem in Fiji and that the police do not always respond quickly or effectively. The police have been ineffective. They are to a degree under-resourced and poorly trained. However, this was viewed as a problem for Fijians generally and the country information does not indicate that the authorities condone or specifically refuse to provide protection in relation to crimes against Indo-Fijians. 10 The Tribunal was not satisfied that the authorities provided ineffective protection to Indo-Fijians for any Convention reason. Rather, any ineffective protection is a result of systemic inefficiency or lack of resources. On this basis the Tribunal was not satisfied that the applicant had been or would be denied protection for a Convention reasons. 11 The learned Federal Magistrate dealt with the matter on the basis of arguments put before him. Those arguments are recounted in the judgment of the Federal Magistrate. The first was that the Tribunal fell into error because it did not deal appropriately with the country information. It was argued that the Tribunal had only taken pieces of information that were favourable to a finding that there was adequate state protection. It should be noted that any suggestion of bias (actual or apprehended) by the Tribunal was eschewed. It was submitted that the Tribunal had not complied with its obligation properly to refer to the evidence or other material upon which its findings of fact were based. 12 As the Federal Magistrate said, these complaints were primarily a complaint about the weighing process of the material. The Federal Magistrate referred, correctly in my view, to cases such as NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 where the Full Court of this Court said at [13] …It is clear from its reasons for decision that the Tribunal did rely on 'country information' in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal. 13 The Federal Magistrate then proceeded to assess whether there had been a proper application of principle to the question of state protection. 14 The Federal Magistrate referred to what the High Court said in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [29] and the consideration of that case by this Court in SZBBE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 264 (Jacobson J sitting on appeal) and the Full Court in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 11 at [32] and [46]. These authorities make clear that it is not enough for the appellant to show that there was a real risk that if she returned to Fiji she may suffer harm. It is necessary to show that the harm was persecution and that she had to justify her unwillingness to seek the protection of Fiji. This justification would turn upon the willingness and ability of the state to provide its citizens with a level of protection to which they were entitled to expect according to international standards. This has been said by Selway J in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [32] to require the provision of a reasonably effective police force and reasonably impartial system of justice. What is reasonably effective is to be determined by international standards. The learned Federal Magistrate was of the view the Tribunal had correctly approached the matter by reference to these considerations. 15 The appeal to this Court was ultimately framed in a further amended notice of appeal filed on 6 December 2005 after argument. 16 The first ground was that his Honour should have found that there was a denial of natural justice by the Tribunal or a failure to accord procedural fairness because of the fact that the Tribunal questioned the appellant extensively on country information without giving the appellant an opportunity to consider the written material before hand. 17 This ground was not argued below. 18 Mr Reilly, who appeared for the Minister, objected to its being propounded on appeal. It required evidence that was not led below, that is, at least the transcript. The transcript was placed in evidence in an affidavit of the appellant which had been filed on 27 September 2005. 19 In my view, the appellant should not be permitted to rely upon this ground. Nevertheless, I have examined the transcript of the Tribunal. Reading the transcript and the reasons of the Tribunal it appears to me that there was no denial of procedural fairness. It is not part of the obligation of the Tribunal to provide copies of all the country information material. The question is one of fairness. In VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; 80 ALD 559 at [28] I said the following: Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant´s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance. 20 Nothing in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 is to the contrary of this. Having examined the material, I am of the view that the issues were raised fairly with the appellant and there was no breach of procedural fairness evidenced by the transcript. This is reinforced when one recognises that the appellant had previously been before the Tribunal and the delegate and must be taken to have understood from the issues raised on those occasions that the question of the state of affairs in the Fiji and state protection would be a central aspect of her claim. 21 The second ground of appeal was that the Federal Magistrate should have concluded that the Tribunal displayed a reasonable apprehension of bias. 22 Once again this ground was not argued below, indeed, it was eschewed. Once again the transcript would be required. Once again I do not see why this ground should be permitted to be relied upon. Nevertheless, having read the transcript I see no basis whatsoever for the assertion of a reasonable apprehension of bias. 23 The third ground of appeal was that the Tribunal erred in the application of the real chance test for persecution. Reference was made to Chan Ye Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The asserted errors are misconceived. The Tribunal plainly based its reasons squarely on state protection. This was not some stringent or skewed application of the test of well-founded fear of persecution. The conclusion that there was an absence of well-founded fear rested on the existence of state protection. 24 The fourth ground of appeal was that there was an error of the Tribunal in finding that effective state protection existed, and that the Federal Magistrate erred in failing to discern that. The arguments put before the Court in this respect were that only DFAT reports favourable to the conclusions reached were relied upon and that there was an unreasonable and excessive reliance upon those reports. I can see no error in the approach of the Federal Magistrate that the factual conclusions were open on the material. This ground of appeal, as argued, fails. 25 The submissions put before me also complain about conclusions about relocation. Nowhere in the Tribunal's reasons is this dealt with. I do not propose to deal with the issue. 26 The fifth ground of appeal was that the Federal Magistrate should have concluded that the Tribunal did not carry out its function in accordance with a substantial justice of the case as required by the Migration Act 1958 (Cth). Once again what is complained about is the excessive reliance upon DFAT reports. Looking at the Tribunal reasons, the material in the court book and appeal book I am unable to conclude that there was any error in this respect. It is arguable that this point was not raised below. However, it can perhaps be seen to be encompassed within the generality of the arguments put to the Federal Magistrate. I cannot conclude on the material that the views expressed by the Tribunal were not open to it. This ground of appeal fails. 27 Therefore, on the basis of all that was argued, the appeal would have to be dismissed. There is one issue, however, which has troubled me in the consideration of these reasons. In its consideration of state protection, the Tribunal made certain findings as to the quality of the protection that could be expected by a person in the position of the appellant. The Tribunal stated at [56] and [57]: I am not satisfied that Indo-Fijians are denied their basic rights or that persecution or mistreatment of them is permitted or condoned by the security authorities or the Fijian Government. I am satisfied that Indo-Fijians do not face a real chance of persecution by the elected government or other authorities. It is generally accepted that crime has been a serious problem in Fiji and that the police do not always respond quickly or effectively. The police have been ineffective as they are under-resourced and poorly trained. However, this clearly a problem for Fijians generally and the country material does not indicate that the authorities condone (or specifically refuse to provide protection in relation to) crimes against Indo-Fijians. 28 If the consideration of the matter were left there it would be open to conclude that there has been an application of usual principle in relation to the operation of state protection in accordance with the authorities to which I have referred. However, the Tribunal then proceeded to state the following at [58]: I am not satisfied that the authorities provide ineffective protection to Indo-Fijians for a Convention reason rather than because of systemic inefficiency or lack of resources. I am not satisfied that the applicant has been or would be denied protection for a Convention reason. [emphasis added] 29 Arguably, this part of the reasoning of the Tribunal discloses a misapprehension of the role of state protection in the operation of Article 1A(2). It is not necessary for state protection to be withheld for a convention reason for its inadequacy to be relevant to the question whether the person is justified in being unwilling to seek the protection of the home country. Although, if it is withheld for such reasons, that may be an independent basis of the existence of a well-founded fear of persecution. This paragraph appears to reflect that the Tribunal has misdirected itself as to a central question. 30 I propose to invite the parties to file written submissions within fourteen days on this issue. The question which appears to me live is whether or not the withholding of state protection need be for any Convention reason. Arguably, there either is or is not adequate state protection. If there is not, then the question of fear of persecution by the appellant here for the events in question may need to be addressed more fully. I will give the parties an opportunity to address me on this. 31 I appreciate that this matter was not argued. However, I am concerned, if I may say so respectfully, as to the quality of the arguments put on behalf of the appellant and that if this is, from the very reasons of the Tribunal, an apparent error, it would be an injustice, in my view, to allow it to pass merely on the basis it had not been raised in argument hitherto. I am fully cognisant of the need to keep parties to their cases at trial. That is, however, only part of the due administration of justice: cf Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [36] to [39]. Nevertheless, in litigation of this character one must always recall the words of Mahoney J (as he then was) in P & C Cantarella v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 at 383: The duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result. [emphasis added] This is especially the case when error, if it be such, appears on the face of the reasons of the decision-maker. 32 The orders are as follows: 1. The parties file within fourteen days any submissions on the issue raised in [28] to [31] of the reasons for judgment. 2. Adjourn the matter to a date to be fixed. 33 If either party does not see written submissions as adequate and if she wishes a further oral hearing in this matter she should include such request in her written submissions. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop . Associate: Dated: 17 March 2006 Solicitor for the Applicant: Mr A Kumar Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 5 December 2005 Date of Judgment: 17 March 2006