SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 In this appeal I published reasons on 17 March 2006 dealing with all aspects of the matter that had been argued (SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FCA 215). In preparing my reasons for judgment I became concerned about one aspect of the Tribunal's reasons which dealt with state protection. I will not, in these reasons, go over the matters that I was concerned about and in particular will not recite again the parts of the Tribunal's decision which caused me some concern. 2 As can be seen in the orders that I made on that day, I requested the assistance of parties by way of further submission on the issues raised in [28] to [31] of my reasons. If I may respectfully say so, the submissions from Mr Reilly of counsel and Mr Kumar of counsel, which were provided to the Court on 27 March 2006 and 30 March 2006 respectively, have been very helpful in clarifying the issues raised in my reasons and assisting me to finalise my decision. 3 Notwithstanding the reservations that I had, and as expressed in [30], I think that the explanation and submissions by Mr Reilly in his written submissions should be accepted. I think to look at the last part of paragraph 56 and paragraphs 57 and 58 in isolation would be to misunderstand what the Tribunal was dealing with. When the whole of the Tribunal's reasons are read, as Mr Reilly indicates, they do address the different aspects of state protection which are thrown up by both Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487. These matters were helpfully dealt with, if I may say so, by the Full Court in SZBBP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 167. 4 With that history of the jurisprudence of state protection better in mind, for which I am grateful for the assistance of counsel, and recognising that the Tribunal had that jurisprudence in mind in the way it dealt with the underlying law, one can see that the matters to which I was referring in [27] of my reasons of 17 March should not be understood as an otherwise incorrect statement that the only relevance of state protection is to be understood by reference to whether it was being withheld for a Convention reason. As Khawar, S152 and SZBBP made clear, the withholding of state protection for a Convention reason may be relevant to other aspects of the operation and application of section 1A(2) of the Convention. 5 The reasons of the Tribunal are not altogether happy. I do not say that disrespectfully. The terms of paragraph 58 may be apt to lead one to conclude that was a finding that the state of affairs in Fiji is such that there is no adequate state protection. That is the construction for which Mr Kumar contends in his submissions. It is not without force; however, on balance, I think Mr Reilly's submissions are to be preferred. 6 When one reads paragraph 58 in the whole context of paragraph 59 and the balance of the reasons, one cannot conclude that there is a finding by the Tribunal that there is no adequate state protection in Fiji. This is particularly shown by the statement in paragraph 59 that: [T]he applicant could have and can now seek the protection of the Fijian government if the individuals who assaulted her persist in such criminal behaviour. The Tribunal continued: There is no suggestion in any of the information before me to support a conclusion that the Fijian government condones or is unwilling or unable to prevent criminal offences committed by individuals against victims chosen for their ethnicity. 7 Thus, when one looks at the totality of the reasons, I do not think that one should interpret paragraph 58 as a finding that there is lacking in Fiji adequate state protection. The context of it was the direction of the Tribunal to the question of any asserted ineffective protection not being granted because of a Convention reason. 8 In those circumstances, notwithstanding the concern which I had, as expressed in my reasons of 17 March 2006, I do not think that I should conclude that the Tribunal has so misunderstood the applicable law as to conclude that state protection is relevant only when it is withheld for a Convention reason. In these circumstances, and thus reading the Tribunal's reasons, I am persuaded that there has not been a jurisdictional error in that regard. 9 In those circumstances, and in the light of the balance of my reasons published on 17 March 2006, the orders of the Court will be that: (1) the appeal be dismissed; and (2) the appellant pay the first respondent's costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.