Case: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Outcome: applied
has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (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]. The issue in this appeal, as it was in Khawar and SZAIX , relates to proposition (iv) above. Having regard to what was said by members of the High Court in Khawar and in Respondents S152/2003 the Tribunal perceived its task to be that (Reasons [85]): I am required to consider whether the applicant has shown State Tolerance or condonation of domestic violence in Vanuatu. Further to that, or as part of that analysis, I am required to consider whether Vanuatu provides its citizens, or the members of the particular social group more specifically, with a reasonable level of protection from persecutory conduct. In assessing the level of protection offered, and assessing whether it is reasonable, I am required to assess that in accordance with international standards. 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]. 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. 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.