CONSIDERATION
23 The appellant's case is that, on a fair reading of the Tribunal's reasons, the Tribunal based its conclusion on the mere existence of mechanisms which were capable of protecting the appellant if the State or its agents (the police) were willing to invoke them: ie proposition (i) above. There was material before the Tribunal both from the appellant and the independent country information capable of supporting a conclusion that there was a lack of willingness on the part of the Vanuatu police to protect her: ie proposition (iv) above. It should be inferred from its reasons that the Tribunal failed to appreciate the significance of this evidence, to analyse what might have informed such lack of police willingness, and hence its bearing upon the issues of reasonably effective State protection and of persecution.
24 I should at the outset deal with one factual circumstance in this matter which differs from the circumstances in Khawar (which also was a domestic violence case). In Khawar the abused woman went to the police on four occasions to report the violence and no action was taken by them. In the present matter the appellant, to quote the Tribunal, "not once has … sought the protection of the police to test [her] presumption" (ie that the authorities would not provide her with a reasonable level of protection). Some significant, though unstated, importance appears to have been given to this failure: see Reasons [86].
25 If the Tribunal was suggesting that actually seeking the protection of the authorities was a prerequisite for a finding of absence of adequate State protection, then it clearly was in error. If cultural norms, practices or widely held assumptions in a particular society engender a reasonable apprehension that such an approach would only exaggerate a victim's predicament, I can see no conceivable reason why the law would require a victim to expose herself to likely future harm to substantiate that she was being persecuted for Convention purposes.
26 This in turn leads to a larger issue which reveals what is a major silence in the Reasons. While the Tribunal was aware that Vanuatu was "attempting to grapple with domestic violence" and has pursued reforms in its laws and has instituted new mechanisms, the Reasons themselves engage in no explicit evaluation of the efficacy of those mechanisms or of the traditional cultural norms and practices which, both on the appellant's case and in light of the country information, might bear on the police's willingness or ability "to take reasonable measures to protect the … safety" of victims of domestic violence. I would emphasise in this, for example, the evidence of the role of chiefs in settling family and domestic violence disputes and of the police's utilisation of the chiefs. The absence of evaluation I have noted seems the more surprising given the Tribunal's treatment of country information - a treatment which simply diluted the potential significance of what the reports clearly were intending to convey. So the State Department report that "courts occasionally prosecuted offenders using common-law assault" is expressed as "there are laws of general application against assault under which the perpetrators of domestic violence have been prosecuted". Likewise the Tribunal's observation that the country information "provides some support" for the appellants information suggesting "that the police are, in some circumstances, reluctant to intervene in domestic matters", rather mutes, for example, the State Department's comment that "police frequently were reluctant to intervene" or Freedom House's comments to like effect.
27 I am not suggesting that the Tribunal was intending to contrive the evidence. Rather, I consider what the Reasons convey is the clear impression that the Tribunal, in all likelihood, failed to understand the potential significance of such evidence to the issue of whether the agents of the State were unwilling or unable to afford protection and, if so, why.
28 That impression becomes the more compelling when one considers the manner in which the Tribunal approached the State's attempts "to grapple with domestic violence". Its concern was with institutional and organisational measures - with the laws, policies and mechanisms now in place - having or capable of having a domestic violence focus. What the Reasons do not reveal, as I have noted, is any explicit evaluation of the efficacy of those measures particularly having regard to the possible traditional cultural barriers to their effectiveness - barriers writ large in the country evidence.
29 I make the above comments, not because I consider that, as a matter of merits review, a different conclusion would have been preferable. Merits review, as is well accepted, is no part of the Federal Magistrates Court function in judicial review proceedings under s 476 of the Migration Act 1958. Rather, when one has regard (i) to the material before the Tribunal; (ii) to the issues raised by the appellant's case as to whether the police would be unwilling or unable to provide her with effective protection; and (iii) to the content and emphases of the Tribunal's reasons, I consider the only proper inference to be drawn: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; is that, howsoever the Tribunal may have formulated its task, it did not appreciate the actual nature of, nor did it undertake, the legal inquiry it was required to undertake as to whether the protective measures which it considered were available in Vanuatu, were ones the State's agents were willing or able to utilise in providing protection. The reasons do not suggest any adequate or reasonable consideration of that issue at all and that was the issue before it on the appellant's case.
30 I am in the circumstances satisfied that the Tribunal's failure properly to consider whether the police were unwilling or unable to afford State protection constituted jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. I likewise am satisfied that the decision of the Federal Magistrate disclosed an appellable error.
31 Accordingly, I will order that:
- The appeal be allowed.
- The orders of Lindsay FM made on 3 March 2009 be set aside and in lieu thereof:
2.1 An order in the nature of certiorari to quash the decision of the Second Respondent signed on 4 October 2008 and sent on 15 October 2008 in RRT Case Number 0802686.
2.2 An order in the nature of mandamus requiring the Second Respondent to review the decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 17 April 2008 according to law.
2.3 An order that the First Respondent pay the Appellant's costs of the application.
- The First Respondent pay the Appellant's costs of the appeal.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.