SZONJ v Minister for Immigration & Anor [2011] FMCA 1 (28 January 2011)

Last Updated: 2 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONJ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 1

MIGRATION – Review of Refugee Tribunal decision – refusal of a protection visa – applicant claiming persecution in Fiji – domestic violence – whether the Tribunal misconstrued the Convention or whether the Tribunal failed to consider all of the integers of the applicant’s claims considered – Tribunal failed to consider the significance of entrenched cultural factors in assessing the applicant’s claims of a failure of State protection.

Migration Act 1958 (Cth), ss.417, 427

AZAAR v Minister for Immigration [2009] FCA 912 Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489 Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1 Minister for Immigration v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 Minister for Immigration v Yusuf (2001) 206 CLR 323 R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 SZAIX v Minister for Immigration (2006) 150 FCR 448

Applicant:

SZONJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1540 of 2010

Judgment of:

Driver FM

Hearing date:

13 October 2010

Delivered at:

Sydney

Delivered on:

28 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr M Gibian

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Respondents:

Ms S A Sirtes

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal made on 7 June 2010.
(2) A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG1540 of 2010

SZONJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 7 June 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Fiji and had made claims of political persecution and also as a member of a particular social group. The following statement of background facts is derived from the submissions of the parties.
2. The applicant is a 36 year old (Court Book (“CB”) 30) Fijian national who arrived in Australia on 13 November 2009 (CB 14).
3. On 20 November 2009 the applicant lodged an application for a Protection (Class XA) Visa with the Minister’s Department (CB 1- 33).
4. After the Minister’s delegate refused the applicant’s protection visa application on 18 February 2010 (CB 39-48) she applied to the Tribunal on 10 March 2010 to review that decision (CB 49-53).
5. On 22 March 2010 the applicant was invited to give evidence at a hearing of the Tribunal and was informed by that invitation that the Tribunal was unable to make a decision in the applicant’s favour based on the material provided to date (CB 57-58). On the same date, the applicant was invited to comment on or respond to information which may be the reason or part of the reason for affirming the decision under the review (CB 55-56), namely the applicant’s delay between obtaining her visitor visa in Fiji and her departure for Australia and statements made during the departmental interview which might undermine the credibility of the applicant’s claimed political interests.
6. On 12 April 2010, the applicant requested an extension of time, which seemed to be a request for hearing postponement. Following correspondence from the Refugee Advice and Case Work Service (which raised for the first time allegations of domestic violence), and telephone calls with the applicant via an interpreter (CB 59-63), the applicant indicated that she would attend the hearing (CB 63).
7. On 22 April 2010 the applicant attended a hearing of the Tribunal (CB 64-65). The hearing was adjourned pursuant to s.427(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”). On the same date, the applicant appointed an authorised recipient (CB 73).
8. On 23 April, the applicant was informed of the resumed hearing date (CB 75-76).
9. On 25 May 2010, the applicant, via her migration agent, forwarded a statutory declaration to the Tribunal (CB 82-110). On 26 May 2010, the applicant attended the resumed Tribunal hearing (CB 111) at which she gave evidence with the assistance of a Fijian interpreter (CB 111).
10. On 28 May 2010, the applicant’s migration adviser provided a post-hearing submission setting out various items of independent country information (CB 119-132).
11. On 8 June 2010 the Tribunal notified its decision, made on 7 June 2010, affirming the decision of the delegate not to grant the applicant a protection visa (CB 134-153).

The Tribunal’s decision

12. The Tribunal:
    1. Accepted that the applicant is a national of Fiji (CB 150 [60]).
    2. Accepted that the applicant is a member of the Women’s Wing of the Soqosoq Duavata ni Lewenivanua party (“SDL”) in Fiji but found that the applicant had very limited involvement in politics in both Fiji and Australia and had no interest in the activities of the SDL or politics in general (CB 150 [63]). Whilst the Tribunal accepted that the applicant had been involved with the Women’s Wing of the SDL and that she may have been warned by the military not to continue her involvement, the applicant’s interest lay in social work for the group and not political work (CB 150 [64]).
    100. Found, on the basis of the applicant’s own evidence regarding her involvement in a demonstration in Australia and her assessment that the authorities in Fiji were unlikely to be aware of her participation, that there was not a real chance that the applicant would be persecuted as a result of her political activities in Australia (CB 150 [65]).
    4. Found that the applicant will not engage in any political activities in the future because she has no interest in doing so, rather than being prevented from so doing, and that any engagement in social work outside of the political sphere would not cause a real chance of serious harm on return (CB 151 [66]).
    5. Accepted the applicant had been the victim of domestic violence perpetrated by her spouse and that she had been threatened by her spouse and that there was a real chance she would be subjected to domestic violence on return to Fiji (CB 151 [67]).
    6. Noted that in order to come within the Convention definition, the applicant must fear persecution for one or more of the five Convention reasons and that, particularly in the instant case, the relevant Convention nexus could come from the failure of the State to protect the applicant where the failure was for one or more of the five Convention reasons (CB 151 [68]), noting that maladministration, incompetence or ineptitude is insufficient to establish this, rather what is required is State toleration or condonation of persecution and systematic discriminatory implementation, citing Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1 (CB 151 [68]).
    7. Considered its own country information and noted that provided by the applicant, including in relation to the Domestic Violence Decree 2009, and acknowledged the applicant’s submissions that the law had little effect, that Fiji is patriarchal and that police would favour men over female complainants (CB 151 [69]). However, the Tribunal also noted that against these factors the State is taking reasonable measures to stamp out domestic violence, such that it is criminalised and there is a police force and judicial system to implement the policies (CB 151-152 [69]).
    8. Found that the country information did not suggest that there is toleration or condonation of domestic violence by the state nor systematic and discriminatory withholding of State protection from the applicant, or that it would occur for a Convention reason (CB 162 [69]).
    9. Noted that the applicant’s circumstances were such that she might consider pursuing a s.417 application on humanitarian grounds (CB 152 [72]).
    10. Was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention (CB 152 [73]).

The present application

13. These proceedings began with a show cause application filed on 13 July 2010 upon which the applicant continues to rely. The grounds in that application are:
    • 1. The Refugee Review Tribunal misconstrued the test for determining whether the applicant was a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Refugees Protocol 1967, as follows:
      • a) The Tribunal failed to consider the efficacy of measures introduced to address domestic violence in Fiji at a local or operational level when assessing whether the applicant would be afforded a reasonable level of State protection from acts of domestic violence by her husband.
      • b) The Tribunal was satisfied that the mere existence of measures designed to stamp out domestic violence was sufficient to provide the applicant with reasonably effective State protection without considering the willingness or ability of police, the courts and other agents of the State to enforce those measures.
      • c) The Tribunal asked itself whether Fiji tolerates or condones domestic violence and whether there was a systematic and discriminatory withholding of State protection from the applicant without considering the action or inaction of agents of the State of whether the reasons for the action or inaction of agents of the State were Convention-related.
    • 2. By reason of the matters set out above the Tribunal failed to exercise its jurisdiction by failing to determine all of the essential integers of the applicant’s claim and/or failing to take into account a relevant consideration and thereby committed jurisdictional error.

The evidence and submissions

14. I received as evidence the court book filed on 11 August 2010, and also the affidavit of Philippa Rosemary Martin made on 22 September 2010, to which is annexed a transcript of the Tribunal hearing on 26 May 2010.
15. The applicant accepts that no jurisdictional error is demonstrated in the Tribunal’s treatment of her claim to fear persecution on the grounds of her political activities. The applicant asserts that the Tribunal committed jurisdictional error in dealing with her domestic violence claim. The applicant asserts that the Tribunal misconstrued the test for determining whether she was afforded “reasonably effective” State protection and that the Tribunal failed to determine her claim that she would be denied effective protection as a result of the unwillingness or inability of the police, courts and other agents of the State to implement laws with respect to domestic violence.
16. The Minister notes that, by reference to the applicant’s written submissions the grounds in the application have essentially merged to form an allegation that the Tribunal did not consider the efficacy of measures introduced to address domestic violence at a local level, in the manner considered in AZAAR v Minister for Immigration [2009] FCA 912. The Minister submits that the applicant’s analysis fundamentally misunderstands and misquotes the Tribunal’s finding which acknowledged the applicant’s submission that the law had little effect (CB 151 [69]) as an acceptance by the Tribunal that the law had little effect. The Minister submits that the Tribunal was merely summarising the weight of competing independent country information and that there is no inconsistency in the Tribunal’s reasoning.
17. The Minister further submits:
    • The Tribunal implicitly held that there was no Convention basis to the domestic violence perpetrated by her husband, (CB 152 at [68]) finding instead that there would need to be some failure of State protection for a Convention reason in order to constitute a basis for protection. Moreover, the applicant had also stated in her written claims that her husband did not care very much about politics, thus denying a political reason to the violence (CB 97 at [66]).
    • Accordingly, the Tribunal was required to consider whether the applicant was unable to access state protection for a [C]onvention reason: Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387 and Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 187 ALR 574.
    • ... the Tribunal had before it a variety of views as to effective state protection for domestic violence complainants in Fiji. Similarly, it discussed access to protection with the applicant at hearing.[1] In response thereto, the applicant indicated that despite the new measures, her husband is “capable of continuing to harass me and be violent to me and, you know, I could even die, and I – you know, knowing him, it doesn’t matter if the police get him, he will still kill me”.[2] Similarly, when specifically asked what would occur if the violence was reported to the police[3] she indicated that when she goes away he follows her.
    • With the greatest respect for the gravity of this issue, and without seeking to be trivial, the applicant’s evidence was not that authorities, domestic violence centres and the police were ineffective in their duties. Her evidence was much more as to the persistence of her husband, rather than unwillingness on the part of police to protect her.
    • Protection does not imply that authorities must or can provide absolute guarantees against harm: Thiyagarajah v MIMA (1997) 73 FCR 176 at 179 and Applicant A (1997) 190 CLR 225 per Brennan CJ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2003) 205 ALR 487 at 494-495.
    • Notwithstanding the submissions made on behalf of the applicant to the Tribunal as to what it should make of the independent country information (see CB 124 to 125) the applicant herself gave evidence not of any unwillingness or inability on the part of authorities, but rather the potential for her husband to act in a random and persistent manner. The Tribunal was entitled to accept the verity of changes in state protection and policy to find, as it did that on the basis of “the evidence and country information set out above, and having considered the information put forward by the applicant” that there was no evidence that there would be systematic and discriminatory withholding of state protection from her or that this would occur for a Convention reason.
    • Not only was this finding open, but it conclusively addresses the suggestion that the Tribunal failed to consider whether this failure to provide State protection was by reason of the applicant’s membership of a particular social group.[4]
    • The Tribunal considered, and found, there was no such nexus (CB 152 at [69]).

Consideration

18. I accept the applicant’s submissions as to the general legal principles bearing upon this case. The claim advanced by the applicant before the Tribunal was that she feared harm from her husband if she returned to Fiji and that she was at real risk of being seriously harmed because of her membership of a particular social group being “women in Fiji”, “women who have left their husbands in Fiji” or “women who refuse to conform to the social norms of Fijian Indian society.” (CB 120-121). The Tribunal does not appear to have doubted that the applicant was a member of those groups or that those groups constituted “particular social groups” for the purposes of the Convention. There is authority for the affirmation of that proposition: Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1 at [32]- [35]; at [81]-[83]; at [126-129] and also R v Immigration Appeal Tribunal; Ex parte Shah [1999] UKHL 20; [1999] 2 AC 629.
19. The circumstances in which conduct giving rise to a well-founded fear of harm at the hands of non-State actors may constitute persecution as a result of the unwillingness or inability of the State to provide effective protection was discussed in Khawar as well as Minister for Immigration v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 and Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489. In AZAAR v Minister for Immigration [2009] FCA 912, Finn J summarised the principles to be drawn from those decisions as follows (at [6]-[10]):
    • (i) It is the obligation of a State to provide an adequate or reasonable armoury of laws and other mechanisms capable of providing international standards of protection: Respondent S152/2003 at [27]; Horvath, at 510; against the perpetration of violence on its citizens: Respondents S152/2003, at [26].
    • (ii) Those standards cannot provide an “absolute guarantee” of protection: Hovath, at 510; the measures taken to protect the lives and safety of citizens must be “reasonable”: Respondents S152/2003; but they cannot be expected to protect against “individual and random” incidents of harm: at [119].
    • (iii) There must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence: Respondents S152/2003 at [21]; Horvath, at 511; and this may necessitate examining how State agents act at a “local level” regardless of the State’s “leaders’ good intention”: see SZAIX at [37].
    • (iv) If the State or its agents condone, approve, tolerate: Khawar, [31]; or are indifferent to: Respondents S152/2003 at [119]; the criminal conduct concerned, or are unwilling or unable to afford protection: Horvath at 510-511; Khawar, at [29] –
      • ... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents]: Khawar, at [31].
    • (v) Proof merely of maladministration, incompetence or ineptitude of State agents would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2) of the Refugee Convention: Khawar at [26].
20. Whether a person is exposed to a real risk of harm for a Convention reason as a result of the conduct of non-State actors requires consideration of the motivation of both the perpetrator of the harm and the reasons for the absence of reasonable State protection. In Khawar, Gleeson CJ said (at [31]):
    • Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. In relation to the case which Ms Khawar seeks to make out, the decision in Ex parte Shah in this respect is directly in point. If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group, if it be the case that women in Pakistan may be so described.

See also R v Immigration Appeal Tribunal; Ex parte Shah [1999] UKHL 20; [1999] 2 AC 629 at 646 and 653-4.

21. Consideration of the adequacy of State protection requires an assessment not only of the attitudes and policies of the central government or high government officials, but also whether police, courts and other officials at a local or grassroots level are willing or able to provide effective protection and, if not, whether the failure to provide protection arises for a Convention reason: SZAIX v Minister for Immigration [2006] FCA 3; (2006) 150 FCR 448 at [37] and AZAAR at [23]-[30]. In dealing with such a claim, the Tribunal is required to consider the effectiveness of measures introduced at a national level in actually providing protection to the individual applicant should she return.
22. The Tribunal’s reasoning on the applicant’s claims is essentially found at [68]-[69] of its reasons (CB 151-152) where the Tribunal said:
    • In order to come within the terms of the definition of a refugee in the Refugees Convention an applicant must fear persecution for one or more of the five Convention reasons. Subsection 91R(1) of the Act provides that Article 1A(2) does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless “that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution”. However it is important in the context of the present case to note that the relevant Convention nexus may be found in the failure of the State to protect the applicant from persecution by her spouse where the failure is for one or more of the five Convention reasons. In this context it is not sufficient to show maladministration, incompetence or ineptitude by the police or that the failure is due to a shortage of resources. What is required is State toleration or condonation of the persecution in question and systematic discriminatory implementation of the law: see Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1, per Gleeson CJ at [26] and per McHugh and Gummow JJ at [84] to [87]. It is also relevant that what is required of the State is not an absolute guarantee of protection. However the State is obliged “to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system”, per Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v respondent S152/2003 [2004] HCA 18; (2004) 205 ALR 487 at [26].
    • The Tribunal has considered the country information cited above, as well as the information to which the applicant referred. The above information indicates that the military government has promulgated the Domestic Violence Decree in 2009 which seeks to address the issues relating to domestic violence. It indicates that there is an active women’s rights movement raising awareness of domestic violence claims and that domestic violence claims are investigated by the police. The Tribunal acknowledges the applicant’s submissions that the law had little effect, that the Fijian society is patriarchal and that the police would favour men over women complaining of domestic violence. The Tribunal has also considered the applicant’s claims that when she brought her complaints to the attention of the police, little or no effective action was taken against her husband. Significantly, the Tribunal acknowledges the country information which indicates that the government lacks resources to implement the relevant laws and that the culture of domestic violence remains. Against these considerations, the Tribunal notes that the state is taking reasonable measures to stamp out domestic violence, that such violence is criminalised and that Fiji does have a police force and judicial system to implement these policies. The country information does not suggest that Fiji tolerates or condones domestic violence or, importantly, that there is a systematic and discriminatory withholding of state protection for a Convention reason. Having regard to the evidence and country information set out above, and having considered the information put forward by the applicant, the Tribunal finds no evidence that there would be a selective and discriminatory withholding of state protection from the applicant or that it would occur for a Convention reason. Thus, the Tribunal finds that the harm the applicant fears from her husband does not amount to persecution for a Convention reason.
23. At the same time, at (CB 148 [54]) the Tribunal noted:
    • On 9 April 2009, Fiji’s Court of Appeal “ruled that Commodore Frank Bainimarama’s actions of declaring a state of emergency and removing Qarase and his ministers from office, were unlawful under Fiji’s constitution.” The Court of Appeal has ordered President Iloilo to dissolve Parliament and appoint an independent interim Prime Minister. The Court of Appeal refused to grant a stay pending an appeal to the Supreme Court. On 10 April 2009, President Iloilo sacked the judiciary and suspended the Fijian Constitution. On 11 April 2009, President Iloilo re-appointed Commodore Bainimarama as Prime Minister until 2014.[5]
24. At a foundational level, it is hard to understand how any credence could be given to any pious statements of an illegitimate regime which came to power in such circumstances and acted with such flagrant disregard for the law. A promise is only as good as the person giving it. The actions of the Fijian regime and its servants and agents speak much louder than the policy statements by that regime concerning respect for the rule of law or the protection of rights. In such circumstances, a proper consideration of the availability of effective State protection depends not upon simple reference to the unreliable statements of the illegitimate regime but, rather, on country information on the effectiveness of the protection that is actually available. The difficulty I have with the Minister’s submissions is that they seek to recast the Tribunal’s analysis into a different form than that which actually appears in the Tribunal’s reasons. The Tribunal did not reason that the applicant was seeking, in effect, a guarantee of protection against an erratic and determined former partner. Instead, it reasoned that Fiji did not tolerate or condone domestic violence and that the country information did not support a conclusion that there is a systematic and discriminatory withholding of State protection for a Convention reason. Importantly, the Tribunal found “no evidence” that there would be a selective and discriminatory withholding of State protection from the applicant.
25. In this matter, the applicant claimed she would not be afforded reasonable protection from her husband as a result of the inadequacy of legal mechanisms in place in Fiji to protect women victims of domestic violence and the unwillingness or reluctance of police, the courts and other officials to enforce such laws as do exist. The applicant claimed that measures introduced to address domestic violence, such as the “No Drop Policy” and the 2009 Domestic Violence Decree, did not provide effective protection at the local level due to entrenched cultural barriers to accessing legal protections and discriminatory attitudes among the police and judiciary (CB 122-127).
26. I accept the applicant’s submission that the reasoning of the Tribunal demonstrates that it failed to consider (or, in the alternative, adequately consider) that claim. The Tribunal “acknowledged” submissions made by the applicant to the effect that laws had little effect, Fijian society is patriarchal and the police favour men over women complaining of domestic violence. The Tribunal did not find it necessary to accept or reject or otherwise evaluate those submissions. Rather, the Tribunal considered that those concerns were answered by the existence of institutional and administrative arrangements to combat domestic violence, in particular that the State was taking “reasonable measures” (presumably the No Drop policy and the 2009 Domestic Violence Decree), domestic violence was criminalised and Fiji has a police force and judicial system to implement these laws.
27. I further accept the applicant’s submission that the only reasonable inference to be drawn from this reasoning is that the Tribunal considered institutional and organisational measures (laws, policies and administrative mechanisms) to be a complete answer to the applicant’s claim of denial of effective State protection. It was sufficient, on this reasoning, that domestic violence is criminalised and Fiji has a police force and judiciary to enforce such laws. What is missing from the Tribunal’s reasoning was any explicit evaluation of the efficacy of those measures in actually providing protection to a person in the position of the applicant in light of the claims made in relation to police attitudes and cultural approaches to resolving domestic violence by reconciliation. There is no other way to reconcile the Tribunal’s acknowledgement that “the law had little effect, that Fijian society is patriarchal and that the police would favour men over women complaining of domestic violence” with the subsequent assertion that “the country information does not suggest that Fiji tolerates or condones domestic violence.”
28. The decision in AZAAR involved an applicant who claimed to fear domestic violence if returned to Vanuatu. The reasoning of the Tribunal in AZAAR was in very similar terms to the reasoning of the present Tribunal. In AZAAR, Finn J concluded (at [26]):
    • ...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.
29. A fair reading of the Tribunal’s reasons in this matter leads to the same conclusion. There is no reference in the Tribunal’s reasons to the decision in AZAAR, which predated the Tribunal decision by about 10 months. This is also apparent from the Tribunal’s finding that “the country information does not suggest that Fiji tolerates or condones domestic violence or, importantly, that there is a systematic and discriminatory withholding of state protection for a Convention reason.” (CB 152 [69]). The Tribunal regarded the question as being whether Fiji, as a nation State, tolerates or condones domestic violence. It engaged in no consideration of whether agents of the State, including the police and judiciary, were willing or able to utilise any laws in existence to provide protection and, if not, whether the unwillingness or inability arose for a Convention reason. This was an issue of substance raised by the applicant’s case.
30. The Tribunal’s summary of the country information demonstrates that it did not regard the efficacy of enforcement of laws relating to domestic violence as relevant to its inquiry. The Tribunal did not refer to the evidence in relation to the incidence of domestic violence in Fiji and cultural barriers to women accessing effective protection. Nor did the Tribunal refer to the evidence as to the attitudes of police and the judiciary put forward by the applicant, including:
    • The AusAid country report on Violence Against Women in Melenesia and East Timor in 2008 which indicated that the No Drop Policy has been inconsistently applied and that the survivors of violence are subjected to insensitive attitudes and even ridiculed by police officers (CB 125.8).
    • The report of Canada’s Immigration and Refugee Board in August 2006 which found entrenched discriminatory attitudes in the courts, including that sentences for domestic violence are rare, often dismissed or minimal and “most couples are made to reconcile in court” (CB 126.2).
    • The 2010 report of the US Department of State which found that “traditional practices of reconciliation between aggrieved parties were sometimes taken into account to mitigate sentences, and in many cases offenders were released without a conviction on the condition they maintained good behaviour, rather than jailed” (CB 126.5).
    • The United Nationals Population fund (“UNFPA”) reports on violence against women in Fiji which referred to analysis of domestic violence cases which found that in 22 out of 24 cases the perpetrators receives suspended sentences and that 90 per cent of sexual assault cases in 2006 were reversed on appeal (CB 126.7).
31. The Tribunal’s summary of the country information focused on institutional and administrative arrangements, particularly the terms of the Domestic Violence Decree (CB 145 [45]-[46]) and the No Drop Policy (CB 145-146 [47]-[48]) and the existence of women’s organisations (CB 146-147 [49]-[53]). The applicant contends, and I accept, that the approach of the Tribunal reveals that it failed to understand the potential significance of the evidence referred to above to the issue of whether the agents of the State were unwilling or unable to provide protection for a Convention reason.
32. I find, as a consequence, that the Tribunal committed jurisdictional error in that it misconstrued the test to be applied in assessing whether the applicant is a person to whom Australia owes protection obligations, failed to determine the applicant’s claims and/or failed to take into account a relevant consideration: Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82].
33. I will hear the parties as to costs.

I certify that the preceding 33Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-threethirty-three (33) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 January 2011

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[1] Affidavit of Phillipa Martin, Annexure “A” at page 13.
[2] T13.30-32.
[3] T13.34-35.
[4] Applicant’s written submissions page 5 at [10].
[5] ‘Fiji coup ruled to be unlawful’ 2009, Television New Zealand, source: ONE News & Reuters, 9
April http://tvnz.co.nz/world-news/fiji-coup-ruled-unlawful-2633758 - Accessed 18 June 2009; and McLean, Tamara 2009, ‘Fiji: Bloggers continue tirade against Bainimarama’, New Zealand Herald, source: Australian Associated Press, 17 April http://www/nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=10567134 – Accessed 18 June 2009.