SZBPM v MIMA & Anor [2007] HCATrans 707 (16 November 2007)

Last Updated: 21 November 2007

[2007] HCATrans 707

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S175 of 2006

B e t w e e n -

SZBPM

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2007, AT 2.54 PM

Copyright in the High Court of Australia

MR N.J. OWENS: If the Court pleases, I appear for the applicant with my learned friend, MR D.R. SULAN. (instructed by the applicant)

MR G.T. JOHNSON: May it please your Honours, I appear for the first respondent. (instructed by Sparke Helmore)

CRENNAN J: Yes, Mr Owens.

MR OWENS: Your Honours, the difficulty of this case arises, if I may say so with respect, largely from the fact that the reasons of the Tribunal are, as Justice Allsop observed, not altogether happily expressed.

KIEFEL J: The difficulty you have to deal with is that Justice Allsop has already grappled with this.

MR OWENS: Yes. It is our submission that properly construed - and when I say properly construed I will be submitting, with respect, a construction different to that which his Honour Justice Allsop adopted – those reasons reveal an error on the part of Tribunal in its treatment of the question of the availability of effective State protection for the applicant.

CRENNAN J: You agree with Justice Allsop’s statement of principle at application book 96, paragraph 29:

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 - - -

MR OWENS: Exactly, and that brings me to the point that I wanted to raise immediately, which is that I acknowledge that for the most part the errors that we raise now do not raise novel questions or questions of principle. In one respect they do, and I will come to that in due course, but for the most part I rely on the interest of justice as the grounds upon which special leave is sought.

CRENNAN J: Yes, very well.

MR OWENS: Now, the Tribunal was prepared to assume in the applicant’s favour nearly all of the matters required to be established in order to make out a good claim to refugee status. It rejected her claim, however, on the basis – and this appears at application book page 14 at the bottom of paragraph 52 - that if all those other matters are assumed:

nevertheless the Fijian government does not condone such mistreatment nor is the Fijian government unwilling or unable to protect the applicant from such harm.

The findings that the Fijian government did not condone the applicant’s mistreatment and that it was willing to protect her are findings that we cannot now and do not now seek to challenge. Our case now is limited solely to the way in which the Tribunal dealt with the Fijian government’s ability to protect the applicant.

CRENNAN J: Making a distinction between ability and willingness?

MR OWENS: Exactly. One can be willing to protect but simply unable or unable to protect to the relevant standard. Now, the question the Tribunal was required to address was quite simply, is the Fijian government able to provide the applicant with effective protection? One would expect, therefore, the Tribunal’s reasons to have contained a clear finding at some point to the effect that Fiji either could or could not provide that protection.

Instead what one finds, however, are conflicting statements, on the one hand suggesting that effective protection was available, and on the other hand suggesting that it was not. Statements to the effect that it was available may be found, for example, in paragraph 52, at the foot of the paragraph that I just took your Honours to; again in paragraph 54 at the foot of that paragraph where the Tribunal says:

there is nothing to suggest that such protection would be ineffective -

It is also found in paragraphs 55 and again to a like effect in paragraph 59. Statements to the contrary effect are found in paragraphs 57 and 58, and there in paragraph 57 your Honours will see that in the second sentence the Tribunal says that:

The police have been ineffective as they are under-resourced and poorly trained . . .

58. I am not satisfied that the authorities provide ineffective protection to Indo-Fijians for a Convention reason -

Now, the question is, given those inconsistent findings as to the effectiveness of - - -

CRENNAN J: Inconsistent is one way of describing them, but another way might be to say accepting that it is not a perfect world and then going on to find that the Fijian authorities would, if required, give the protection when sought.

MR OWENS: Yes, the conclusion, however, that the Tribunal was required to reach is whether there was effective or ineffective protection. It can be effective protection relevantly for the purposes of the Convention if it is not optimal, for want of a better word, or if it does not guarantee safety, and this Court has made that very clear - - -

CRENNAN J: Yes.

MR OWENS: - - - that no government anywhere can guarantee the safety of - - -

CRENNAN J: Perfect protection.

MR OWENS: Exactly. But what the Tribunal was required to determine was whether there was for the purposes of the Convention effective protection, and it has said differently in different places in its reasons that there is effective protection and then that there is not effective protection.

CRENNAN J: Justice Allsop relied on 59 in that context, did he not?

MR OWENS: His Honour did, and 59 is one of the paragraphs that contains statements to the effect that there is effective protection. A simple point - - -

CRENNAN J: Which draws the conclusions together.

MR OWENS: Well, with respect, it does not address the opposite statements that are found in paragraphs 57 and 58. Paragraphs 57 and 58 say that there is ineffective protection, it is because the police are “under-resourced and poorly trained”, however, it is equally ineffective for both indigenous and Indo-Fijians. So paragraph 59 does not – it is, in my submission, no more than a contrary assertion to that which is found in paragraphs 57 and 58, and there is no reason why one would prefer one over the other.

Now, that is not to say it is my submission that paragraphs 57 and 58 represent a binding finding that overrides the other one. My submission is this. When you have two inconsistent statements one assumes that the Tribunal was not meaning to contradict itself on a critical or important matter. The fact then that there are inconsistent statements means, in my submission, that what the Tribunal has done is not in fact addressed the question of the effectiveness of the protection and rather has been concerned primarily or, indeed, exclusively with the question of the equality of the availability of such protection as is available.

CRENNAN J: Well, often there might be evidence looking in different directions, but at the end of the day the Tribunal here at the midpoint of 59 comes to the view that:

there is sufficient evidence to satisfy me that the government of Fiji and its police force would, if given the opportunity, take the action necessary and available to it to prosecute criminal offences and to provide effective protection to its citizens from such criminality.

So there is a satisfaction on the totality of the evidence in relation to those matters.

MR OWENS: Subject to this, your Honour. The submission that I wish to put is simply that those findings in paragraph 59 must be read with the findings in paragraphs 57 and 58 to this effect, that the Tribunal has been concerned principally to determine whether or not such protection as is available is equally available to both Indo-Fijians and indigenous Fijians. Having decided that it is equally available, on my submission, the only way that one can really reconcile these two differing positions is by saying that having decided the protection is equally available, that it is effective for the purposes of the Convention, and that is where the point of principle that Justice Allsop raised comes in.

CRENNAN J: Yes.

MR OWENS: It is simply irrelevant on any view of it if there is ineffective protection. The reasons why it may be withheld, such ineffective protection may be withheld, are irrelevant. If it is ineffective whether or not they are more than willing to - - -

CRENNAN J: It goes back to your ability point.

MR OWENS: Exactly. I do not think I can push the submission much further, but - - -

CRENNAN J: We do understand the submission.

MR OWENS: Yes, thank you, your Honour. Now, the final point that I would wish to raise then is if those submissions were not to be accepted and it were to be said that there is a finding that indeed the protection is effective for the purposes of the Convention, in our submission then we would say that there is a point of principle which arises, namely, what are the standards against which that effectiveness is to be judged, and following on from that, did the Tribunal in this case err by not identifying those standards and assessing the quality of the police protection available here against those standards.

KIEFEL J: I am sorry, what standards do you say where the uncertainty in relation to the standards arises?

MR OWENS: Well, the uncertainty is this. In this Court’s decision in Respondents S152, as your Honours will remember, the Court specifically left open the question of what the standards were and how they were to be ascertained, so that is a question which was expressly left at large by this Court’s judgment, and that is in paragraph 28. I will take your Honours to that in a moment.

If I could just trace quickly through the subsequent Federal Court authority dealing with this question after Respondents S152, there have been at least two judgments - and I will just give your Honours the reference to them without taking you to them at the moment. The first is SHKB v The Minister [2004] FCA 545, and the second is Applicant A99 of 2003 [2004] FCA 773.

Now, both of those decisions make clear that it is necessary, provided there is evidence put forward suggesting a lack of efficient protection, that the Court needs to address the standards and identify the standards and compare it to it. Now, in Respondents S152 the reason the High Court was able to leave the question open is because the basis upon which the case had been there put was in fact a case that the state through its police force was in fact encouraging the violence that was being inflicted by private persons.

So in that case the claim was actually to the effect that the police force was effective; in fact, it was so effective that it was able to orchestrate private violence which affected the applicants in that case. So in that case the majority said, well, it is obvious and readily understandable why there was no evidence in that case suggesting that the police force was ineffective because the very premise of the case was that it was effective.

In those two Federal Court cases to which I have just referred your Honours, again the question was, is there evidence that has been put forward suggesting the police force is ineffective? If there is – in one of them there was, in the other one there was not – the Tribunal needs to go and identify the standard and consider the effectiveness of the police force against that standard.

Now, in other subsequent Federal Court authorities there has been, if I may put it this way, an expression of - discontent might be putting it a little highly, on the part of the Federal Court when they said, well, what are these international standards to which we are supposed to measure police forces, how do we find them, where do they come from, and so on. In the decision of MZ RAJ v The Minister [2004] FCA 1261 Justice Heerey expressly refused to follow the earlier two Federal Court cases that I have referred to, effectively, I think, holding that it was impossible to ascertain
the content of these international standards and therefore the Tribunal makes no attempt to do so and does not fall into error.

Now, whatever the difficulties in identifying these standards the fact is that this Court in Respondents S152 said there are international standards and they must be ascertained and in an appropriate case the effectiveness of a police force must be assessed against them. Now, in this case, just bringing it back to the present matter - - -

KIEFEL J: I was just going to ask you why this case is a good vehicle for the - - -

MR OWENS: Well, in this case the point was made that the police force was ineffective. There is, on the assumption that they have got this far down the track, a finding that it was effective, yet nowhere in the Tribunal’s reasons do we find a statement of the standard against which that effectiveness is to be judged, and in my submission it goes without saying that to find something satisfies a standard, namely, effective protection for the purposes of the Convention, one must know the standard against which one is assessing the matter.

The absence of that inquiry and the absence of that statement in this case, in my submission, constituted error, and that is the other basis upon which we put the application for leave to appeal.

CRENNAN J: Thank you, Mr Owens. Yes, Mr Johnson.

MR JOHNSON: Yes, thank you, your Honours. Your Honours, my learned friend’s argument in relation to his first point seeks to paint paragraphs 57 and 58 of the Tribunal’s reasons as being conflicting findings with those in paragraphs 52, 54, 55 and 59 as to whether or not the Tribunal found that Fiji was in fact able to provide protection. We dispute that proposition, and Justice Allsop, of course, plainly dealt with that at page 101 of the appeal book, particularly in paragraphs 3 and 4.

What the Tribunal was doing there in paragraphs 57 and particularly 58 was examining and satisfying itself as to an issue that fell for its consideration quite apart from the ability of Fiji to protect the applicants, and that was the idea which is acknowledged in Khawar, that if the state withholds protection for a Convention reason then that may in itself become Convention persecution in a particular case, even though the underlying threat might not of itself amount to Convention persecution. I can give your Honour some paragraphs in Khawar where that proposition is acknowledged. I think your Honours should have a copy of Khawar [2002] HCA 14; 210 CLR 1.

CRENNAN J: We do.

MR JOHNSON: If your Honours could go to page 27 in the joint judgment of Justices McHugh and Gummow, for example, they say in paragraph 78:

The selective enforcement of a law of general application may result in discrimination between complainants which produces, in the legal sense, discrimination against one group of complainants . . .

79 The substance of Ms Khawar’s complaint is that (a) she was unable to obtain police protection in respect of the domestic violence she suffered; (b) that state of affairs represented a denial of fundamental rights otherwise enjoyed by nationals in Pakistan; and (c) it was a form of selective or discriminatory treatment which amounted to persecution by the State authorities.

So your Honours can see the argument that the denial of protection may, if it is for a Convention reason in some cases, depending on its consequences, of course, where they are sufficiently serious, may amount to persecution for a Convention reason, regardless of whether the underlying problem fits the bill.

CRENNAN J: Yes, and you are saying these were steps in dealing with that argument?

MR JOHNSON: Dealing with that issue which - - -

CRENNAN J: When you look at 59 and 52 you do not have contradictory findings, as urged by Mr Owens?

MR JOHNSON: That is correct. It is not contradictory at all. What the Tribunal is doing in paragraph 58, which was the particular – and I agree with my friend, it has to be read in conjunction with 57 - - -

CRENNAN J: Yes.

MR JOHNSON: - - - but that was the particular problem that Justice Allsop identified in his first judgment as being something that he wanted further submissions upon - - -

CRENNAN J: And he dealt with that.

MR JOHNSON: - - - that was the subject of a subsequent debate, and we say, and his Honour plainly has accepted, that that finding in paragraph 58 simply deals with that argument that I have outlined and does not undermine what follows as to the ability of Fiji to provide effective protection.

CRENNAN J: What about Mr Owens’ second point, Mr Johnson?

MR JOHNSON: My friend’s - - -

CRENNAN J: This is the standards point.

MR JOHNSON: Yes, the standards point. I think my friend really characterised it as his third point, but your Honours, what we say about that really has two dimensions. One involves going to the Tribunal’s reasons and appreciating the time at which this case was decided, and the other involves going to the judgment of Justice Heerey that my friend mentioned.

If I could just do the first, your Honour. If we go to the Tribunal’s reasons, your Honour Justice Crennan has already read today in the dialogue with my learned friend a part of paragraph 59, which is perhaps the strongest part of the Tribunal’s reasons from the point of view of showing that it did consider the ability of Fiji to protect the applicant, but could I just draw your Honours’ attention to some other aspects of that paragraph? If your Honours go a little bit further above, starting about six lines down, there is a sentence:

There is no evidence before me that the government of Fiji condones such unlawful actions nor that the persons responsible are encouraged by the government or –

and this is the part that I emphasise, your Honours –

beyond the power of the government to control or, if necessary, punish.

So what the Tribunal is saying, particularly when you read those words in addition to the ones that your Honour read before, is that not only is the police force able to do something about this but they can also bring the culprit to justice, they can obtain punishment, to adopt the Tribunal’s word. So what the Tribunal is doing here, at least impliedly, is accepting that the judiciary and the criminal law are adequate at least to bring the threat or any potential threat to this applicant to justice. So the Tribunal is, when 59 is read as a whole, making a finding that the police would be able to provide effective protection, that they did have the ability to do that, and to achieve punishment as necessary.

Now, your Honours will appreciate that this Tribunal decision was in fact handed down before S152, this was handed down on 23 September 2003 and S152 was in April of 2004, so it is not surprising that the Tribunal does not take up the language of S152, but both Justice Allsop and the federal magistrate have accepted that the Tribunal’s approach was inconsistent, so it was consistent with that case.

CRENNAN J: That authority.

MR JOHNSON: With that authority, yes. I will just give your Honours the paragraph references for that. The federal magistrate on application book page 29 at paragraphs 16 and 17, and Justice Allsop also picking up what the federal magistrate said at page 93, paragraph 14.

There are some other aspects of the reasons, or parts of the reasons, outside of paragraph 59 which help - my friend has already referred to the particular paragraph numbers - and indicated to your Honour where the passages are to be found. But at the bottom of paragraph 52, that last sentence includes a finding that the Tribunal is satisfied that “the Fijian government” not only “does not condone such mistreatment”, not only that it is not “unwilling”, but also that it is not “unable to protect the applicant from such harm”.

Paragraph 54, there is a finding there in the third-last line of paragraph 54, that “normal forms of protection against harm are available to the applicant”.

CRENNAN J: Is this the final sentence there?

MR JOHNSON: The final sentence.

CRENNAN J: It also deals with ability as well as willingness?

MR JOHNSON: Exactly, exactly. It is plain that the Tribunal took the view, deciding the case at the time that it did, that law and order had been re-established in Fiji and the fact that there had been some changes. So what we say is that the Tribunal did do all that it was jurisdictionally obliged to do in the wake of S152.

Now, with respect to my friend’s further contention, which is that the Tribunal is under an obligation to in effect specify the particular international standards and to in terms evaluate what is on offer in Fiji against those standards, that proposition was rejected by Justice Heerey in MZ RAJ, and could I just indicate to your Honours that his Honour’s rejection of the proposition was not simply based upon the difficulty of ascertaining these standards, his Honour certainly noted that. But his Honour’s conclusion was also based upon the fact that this Court’s judgment in S152 had not required that to be done. In MZ RAJ, if your Honours have it, in paragraph 26, Justice Heerey holds that:

The ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, “international standards” of protection and matches the law enforcement machinery of the state in question against those standards.

His Honour goes on to explain that that was not done in S152. Towards the end of the judgment, indeed in the very last paragraph in paragraph 35, his Honour indicates disagreement with the two judgments to which my learned friend referred, to the extent that they suggest otherwise.

I might say, however, your Honours, that when one goes to those cases it is doubtful that they truly are authority to the opposite effect because in A99 at paragraph 58, which is the paragraph that Justice Heerey is there speaking of, the Federal Court spoke of a failure to determine:

whether the police and other security forces are reasonably effective and meet international standards.

Now, that does not necessarily mean that one has to in the reasons specify the standards, let alone that one must in the reasons having specified the standards then embark on the kind of comparison for which my friend seems to contend.

KIEFEL J: Well, Justice Heerey explains this at some length by reference of transcript in S152 by what was really intended by what the court referred to and it was a factual inquiry, or the absence of the factual inquiry.

MR JOHNSON: Yes, he went to the trouble of going back to the transcript and looking at the debate which occurred there about the difficulty of identifying these things. Similarly, SHKB did not really in terms require either identification or spelling out of the standards, and express comparison.

It found that in the absence of evidence before the Tribunal that protection available from South Africa was below international standards or even that it was so inadequate that a person could not be blamed for not relying upon it, then the Tribunal was correct to conclude that it was not satisfied that South Africa lacked the capacity and willingness to provide effective protection. Of course, Justice Heerey’s judgment has been
followed by at least two other members of the Federal Court in the cases to which I have referred.

We say, your Honours, for the reasons summarised at the commencement of the respondent’s summary of argument that it is not an appropriate case for special leave.

CRENNAN J: Any reply, Mr Owens?

MR OWENS: Just very briefly, your Honour. Your Honour, in relation to my friend’s point that paragraphs 57 and 58 are explicable on the basis that there the Tribunal was considering, if I may put it this way, the Khawar analysis, I am going to say this, that it is clear that that question was, or in fact had already been, addressed by the Tribunal in paragraph 55. The opening sentence of that paragraph states that:

There is nothing in the independent information available to me to suggest that the Fijian authorities would withhold effective protection . . . because of her ethnicity or for any other Convention reason.

So, in my submission, the Tribunal had already dealt with the Khawar point. It is then dealing with a different question in paragraphs 57 and 58, and I can really only repeat this submission that the findings must have been something, and we say that what they mean is that there is a finding that equality of protection was ineffective but that the Tribunal has disregarded that fact as relevant because it was not ineffective for a Convention reason, and that is the error that Justice Allsop raised but ultimately disagreed with. We say that it is an error and it is found there.

The only other point that I would wish to make is in relation to Respondents S152. I explained before why it is that it was not necessary in that case for the standards to be identified. That is because the case that was put before the Tribunal there on no view could have included - - -

KIEFEL J: The difference between you and perhaps between Justice Heerey’s approach is that you say that what is left undetermined but which requires determination in each case is a standard, and that depends upon whether or not Justice Heerey was correct in his approach.

MR OWENS: Well, yes, and the starting point is this Court has said there are international standards and that is the standard against which the effectiveness of state protection is to be measured. Justice Heerey appears to have said it is very difficult to identify what those standards are and that therefore - - -

KIEFEL J: I thought Justice Heerey was saying that is really not what you deduce from S152 if you analyse what the approach – the factual background and the approach their Honours took.

MR OWENS: Well, that is what his Honour found, but in my submission that is not correct, because the reason why it was not – his Honour placed reliance on the fact that the High Court in S152 did not articulate the standard and did not see it as necessary to do so and yet nevertheless said the Tribunal’s decision was not infected with jurisdictional error. The point I am making is that it was not required to in that case because of the way the particular applicant’s claim was put to the Tribunal.

KIEFEL J: I understand that.

MR OWENS: Yes. Those are my submissions.

CRENNAN J: Thank you, Mr Owens.

This application concerns whether the Refugee Review Tribunal fell into jurisdictional error when addressing the role and standard of State protection under Article 1A(2) of the Convention relating to the Status of Refugees. The Federal Court (Allsop J), in its appellate jurisdiction, dismissed an appeal from a decision of the Federal Magistrates Court, Federal Magistrate Raphael, which in turn dismissed an application for review of the decision of the Refugee Review Tribunal affirming the decision of the Minister’s delegate not to grant protection visas to the applicant and her family.

In each respect contended for it has not been shown that the Tribunal addressed the wrong question. We are not persuaded that the prospects of success in this matter are such as would justify a grant of special leave, nor do we consider that the interests of justice require such a grant. Special leave to appeal is refused.

Are you seeking costs, Mr Johnson?

MR JOHNSON: Yes, your Honour.

CRENNAN J: Have you anything to say, Mr Owens?

MR OWENS: Other than a plea for mercy, no.

CRENNAN J: Special leave to appeal is refused with costs. Thank you.

AT 3.28 PM THE MATTER WAS CONCLUDED