MIMA v Khawar and Ors S128/2001

[2001] HCATrans 572

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S128 of 2001

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

NAIMA KHAWAR

First Respondent

MEHR-un-NISA KHAWAR

Second Respondent

SANA KHAWAR

Third Respondent

MUHAMMAD AHMED SAEED

Fourth Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 NOVEMBER 2001, AT 10.18 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   I appear with MR J.D. SMITH and MS M.N. ALLARS for the appellant.   (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC:   I appear with MS S.E. PRITCHARD for the respondents, if the Court pleases.   (instructed by Coelho & Coelho)

GLEESON CJ:   Yes, Mr Williams.

MR WILLIAMS:   The appeal raises two questions:  first, where the State fails to provide protection against harm feared from private individuals for non‑convention reasons, whether that failure is capable by itself of constituting persecution for a Convention reason; secondly, where the State fails to provide protection against harm feared from private individuals for non‑Convention reasons, whether that State failure is capable, together with the private harm feared, of constituting persecution for a Convention reason, particularly in light of the findings that the Tribunal made here.

At the heart of the appellant’s submissions lies one central proposition, that persecution and protection are distinct concepts in the Convention definition of a refugee, just as it is impermissible to use the concept of persecution when seeking to define a particular social group, so it is impermissible to use the concept of protection when seeking to define persecution.

This is so for the same reason in each case, that is, to use elements from one concept in construing and applying another is to broaden, impermissibly, the text.

KIRBY J:   But that does not seem to fit with what this Court has said repeatedly, and Justice McHugh in particular, that it is a composite concept.  This is just absolutely wrong to interpret legislation or a convention incorporated by legislation word by word.  You have to look at the whole composite concept.

MR WILLIAMS:   We advocate a holistic approach, but the word ‑ ‑ ‑

KIRBY J:   It does not sound like it.  It sounds as though you are snipping and cutting and pasting and looking at things separately.

MR WILLIAMS:   To the contrary, we submit that, with respect, that is the approach that has been taken in the court below, to take part of one concept from within the definition and use it when construing another concept within the definition, rather than reading the definition as a whole.

KIRBY J:   But the fact that the definition contains, in it its closing part, that the person who claims to be a refugee is unable or unwilling to return to the country of nationality because the State there is not able or willing to protect them, must give some colour to the whole concept of the Convention reason, it would seem, that you have to look at it as a whole, and that appears to, as it were, flow back into the meaning of the reason and the well‑grounded fear.

MR WILLIAMS:   We have no difficulty with the notion of reading it holistically and of giving some colour to the earlier terms, however, if it involves taking concepts from the notion of protection and applying them to the notion of persecution, our submission is that that falls into the same kind of error identified in Applicant A, that of conflating the concepts and weakening, impermissibly, the cumulative requirements in the Convention.

KIRBY J:   You will do so in your own time but it seems to me that Justice Hill reached his conclusion, as I understand it, contrary to what he would have done, had he felt free, because he thought Applicant A stood in the way.  It seems as though he was flowing towards a conclusion read Shah or Islam and said, “I cannot follow that path because Applicant A stands in the way.”  I do not quite understand, at the moment, how it does but no doubt you will have to come to that because that seems to be the key to his Honour’s reasoning.

MR WILLIAMS   Yes, we will come to it but, in short, our contention is that the approach of this Court in Applicant A and in Ibrahim is one that involves a recognition of the confined purposes of the Convention.  The purpose is stated very broadly in the preamble and opening words but confined by the text and both of those cases recognise the need to give primacy to the text over the very broadly stated objectives and in that respect we submit that Justice Hill was right to construe Applicant A in the way that his Honour did.  We submit a departure from Applicant A or the approach in Applicant A is apparent both in the approach of the majority in the court below and also in the two decisions of the House of Lords on which our learned friends rely, Horvath and Islam.

GLEESON CJ:   Just to relate this to the facts of this case, Mr Williams, do I understand from the supplementary submission that we got recently and the withdrawal of paragraphs 53 to 65 that it is common ground that if the majority in the Full Court of the Federal Court and Justice Branson were right, then the Tribunal will need to look again, or perhaps look for the first time - it does not matter which - at the question of whether there is evidence that warrants a conclusion that there is something systematic and State‑based in the response that the police showed to complaints made by Mr Basten’s client.

MR WILLIAMS:   If the majority in the court below and Justice Branson are right in their construction of the Convention on the first issue, that is that the failure of the State, by itself, can constitute persecution, then that result would follow.  In respect of the second issue, there are findings of the Tribunal that, we submit, have to be taken into account.  If I might turn then to the first issue - - -

KIRBY J:   Just so that I will understand where we are going, is it central to your thesis, and it does seem to have been adopted in the list of principles of Justice Hill, that omission by a State to act, even to act to protect fundamental dignity and rights that we would take for granted in Australia, can never of itself amount to persecution.  Persecution, as a concept, always involves active action by the State.  Is that at the heart of your argument?

MR WILLIAMS:   Yes, your Honour.  Persecution involves - and the mere failure to provide protection in circumstances where absent the intervention of private individuals, the claimant does not fear harm, is not of itself persecution.

McHUGH J:   But the question of persecution in this case has to be looked at in a much broader context, has it not, than the question of assaults.  Does one not have to determine whether or not there are other avenues open to the applicant in the society in which she lives, or lived, which would overcome some of the problems to which she refers?  Look at the situation in Australia.  I do not know what the situation is today, but certainly it is fairly well documented that not so very long ago police did not give battered wives in Australia the protection which many would have thought they deserved.  Arguably, that did not amount to persecution because in Australian society they could leave home, make a new life and they suffer no social stigma and the problem would be avoided in that way.

Now, I do not know what the evidence is in this particular case, but perhaps in Pakistani society a woman cannot do that and retain her dignity.  But if you can, maybe the whole question of persecution has to be looked at.  I mean if she can leave home and go down the street and her husband is not going to be pursuing her and the State is not going to be doing anything, she just gets on and leads another life.  Arguably, there is no persecution in that context, but what if she cannot realistically, within Pakistani society, enjoy a reasonable and dignified life?  Then maybe it does constitute persecution, if the State fails to intervene.

MR WILLIAMS:   The issues that your Honour raises go first to the question of possible internal sanctuary, and there are not findings made by the Tribunal in relation to that issue in the present case.  Our submission would be more widely that as a matter of construction of the Convention, the term “persecution” itself does not import a failure of State protection, neither as a matter of the ordinary language of the word “persecution”, nor as a matter of the construction of the Convention.

McHUGH J:   But when you say “a failure”, you use a term which is very ambiguous.  Do you mean by “failure” a mere omission or do you include in the term a tacit acceptance of the conduct that is complained of?

MR WILLIAMS:   By “failure”, we could go for present purposes as far as tacit acceptance but falls short of active incitement.

McHUGH J:   Take the situation in Germany in 1938 when Goebbels and others were turning on and off attacks on Jews as suited the international political scene.  They just allowed people – perhaps some people as members of the Nazi Party encouraged persecution of Jews.  The State just stood by, but if they wanted to, as they did on a couple of occasions, they stopped it for international reasons.  Why is that not persecution by Germany in those circumstances?

MR WILLIAMS:   The factual difference in the example that your Honour posits is that the State actively encouraged persecution, the State incited ‑ ‑ ‑

McHUGH J:   I am not sure that at high levels, with the possible exception of Goebbels, that they were actually going out of their way to encourage it, but, I mean, there was just this general dislike of Jews among members of the Nazi Party, just ordinary members, and they were involved in these acts against the Jewish people, but the government just stood by because there was really in accord with the policy of the government.

GUMMOW J:   Anyhow, the German State had been systematically and in an accelerating fashion stripping civil rights from these people.  It got worse and worse as the years went on, but there was an ‑ ‑ ‑

KIRBY J:   It started from 1933.  It did not start in 1938.  It did not start with the Nuremberg laws in 36, I think it was.  If you read the book by Klemperer, “To the Bitter End”, which is the story of a Jew in Germany, a daily diary, you see that it started immediately Hitler came to power.

GUMMOW J:   Yes, that is what I had in mind, that exact example.

MR WILLIAMS:   The difficulty with any example involving ‑ ‑ ‑

GUMMOW J:   And that is not this case, that is the trouble.  So, analogies are minefields in this area, I think.

MR WILLIAMS:   Particularly examples involving Germany because they involve a knowledge of ‑ ‑ ‑

GUMMOW J:   Well, an assumed knowledge, which was often incomplete, though.

MR WILLIAMS:   Yes, and also a knowledge of the state of persecution at a particular time and it is important to remember exactly what the State policy was at the particular time.  In our submission, there is a critical point of distinction.

GUMMOW J:   Assume that the husband’s conduct here was condoned and encouraged by his religion, and assume that religion was the State religion of this particular country.  How does that impact on this definition?  Is he being persecuted for his religious beliefs if the police come along and stop him doing this activity?

MR WILLIAMS:   We would say, no, your Honour.  We would say, no.  Our starting point in that analysis is to start with the meaning of the term “persecution”.

GUMMOW J:   Yes.

KIRBY J:   You get some support for your submission from the definition in the new Macquarie Dictionary, which recently came out.  It has three definitions.  The first is “to pursue with harassing or oppressive treatment”.  The second is “to oppress with injury or punishment” and the third is “to annoy by persistent attentions, importunities, or the like”.  So, all of those are active concepts and, yet, Mr Basten points to a whole body of jurisprudence in many countries, including the United Kingdom, which suggest that in this context, persecution has extended into notions of passive refusal to do what a civilised State should do and would do.  So, this is the problem.  You say, “Look at the text”, but when courts in many countries have looked at the text, in the United Kingdom, in Canada and the United States, they have not confined the notion of persecution to the popular meaning of active oppression and actions and harassments.

MR WILLIAMS:   If your Honour is referring to the body of material to which Mr Basten refers as constituting a body of State practice, we would say that it falls short of that for the reasons that your Honour Justice Gummow gave in Ibrahim.  There is no sufficient consistency in the construction of the Convention to amount to State practice, but we certainly rely upon the dictionary definition, the other to which your Honour Justice Kirby referred in Chen Shi Hai, the Australian Oxford Dictionary, and the ordinary meaning of the word ‑ ‑ ‑

GUMMOW J:   But that involves the injection of some western cultural values, does it not?  We use the word “civilised”.  That is just a wrapped‑up expression for some values which come from our culture, is it not?

MR WILLIAMS:   There is a degree to which western values underlie the Convention.

GUMMOW J:   Absolutely at the time.

KIRBY J:   I am perhaps guilty of using the word “civilised”, but I was using it in the sense that the Convention is to be seen in its context in international law.  International law includes a whole body of Conventions, including the Conventions in relation to the rights of women, that provide the civilised or international context of the Convention and therefore, I would have thought, the context in which we read the Convention.  It is one of many instruments of international law.

MR WILLIAMS:   It may be part of a wider body of international law but, as the analysis of the majority in Applicant A and the analysis of your Honour Justice Gummow in Ibrahim shows, the wider principles of international law and the general humanitarian purposes that underlie a number of the Conventions to which your Honour Justice Kirby refers have not been implemented in the Refugees Convention.  It is a deliberately limited compact ‑ ‑ ‑

KIRBY J:   That is what you are going to have to make good as far as I am concerned.  I dissented in Applicant A, but if there is a holding there that supports the view that Justice Hill takes, then I must conform to it.  So you are going to have to make that good because I do not see it at the moment.

MR WILLIAMS:   Perhaps if I might turn to that task first by going to the judgment of Justice Lindgren on the first issue, then dealing with Horvath and returning to Applicant A in the context of the second issue.  The critical passage in the judgment of Justice Lindgren commences at page 176 of the appeal book.

GUMMOW J:   Which paragraph?

MR WILLIAMS:   Paragraph 120, I am sorry, your Honour.

GUMMOW J: The decision is reported in 101 FCR 501.

MR WILLIAMS:   Yes, your Honour.  In paragraph 120 Justice Lindgren formulates what appears to be a test from the decisions of this Court in the area, a test which does not include an element of “for reasons of”, although that is a matter discussed elsewhere in his Honour’s reasons, but in paragraph 121 his Honour accepts the proposition:

that “persecution” can take the form of a discriminatory withholding by the state from the members of a particular social group of goods or services that the state provides to other persons.

In paragraph 122 his Honour takes the crucial further step of concluding:

If a state had a policy of not making available to the members of a particular social group protection by the police that was available to other members . . . could amount to –

persecution.  Then in paragraphs 123 and particularly 124 his Honour applies that reasoning to make the critical finding on the first issue, but then in paragraph 126 his Honour observes that if a discriminatory absence of protection is based on:

a pervasive view of the authorities, whatever its own explanation and genesis, that women deserve less fundamental rights and freedoms than others –

the purposes of the Convention would support their protection as refugees.  Then, in paragraphs 128 and 129, his Honour concludes that the Tribunal erred by failing to consider whether there had been a discriminatory withholding of protection by the State organs charged with a protective role.  The first question that this raises is the meaning of “persecution” in the Convention definition.  Our starting point for that consideration is the ordinary meaning of the word, read in its context – a meaning to which your Honour Justice Kirby has referred the Court, from the Macquarie Dictionary.  All those meanings, in our submission, involve activity, in the sense of pursuit, harassment, oppression, persistent attention, and all involve an element of harm.  None of them requires, or even alludes to, activity or inactivity on the part of the State. 

GLEESON CJ:   Is the search for the role of the State in what is happening to the respondent because it is not being suggested that she is being persecuted by her husband, on a Convention ground? 

MR WILLIAMS:    The findings of the Tribunal are clear that none of the suggested Convention grounds form any part of the motivation for the husband’s persecution. 

McHUGH J:   The Convention does not cover private persecution, does it?  Is that not the accepted theory?  You have to have government involvement. 

MR WILLIAMS:    That is, we submit, the accepted theory. 

GLEESON CJ:   Suppose you switch the scene to the Victorian goldfields in the second half of the nineteenth century, and you find that Chinese miners are being systematically dealt with by other miners, in a manner that subjects them to adverse discrimination, and perhaps even physical violence from time to time.  Now, before we turn to look at what the police are doing about that, or what the government is doing about that, is the proposition that you cannot say that the miners are persecuting those Chinese for reasons of race?  Is that the first step? 

MR WILLIAMS:   No, your Honour.  In the example that your Honour posits the persecution is harm and it is directed for reasons of race.

GLEESON CJ:   What is the difference between private persecution and public persecution?  You have a group of gold miners on a goldfield who beat up Chinese when they see them.

MR WILLIAMS:   That is private persecution for a Convention reason.

GLEESON CJ:   I do not know why you add the word “private”.  It is persecution for a Convention reason, is it?

MR WILLIAMS:   Yes, your Honour, we accept that.

GLEESON CJ:   Right.  You could take it further, if necessary, if you could demonstrate that there was an official policy of turning a blind eye to that kind of activity because people wanted to get Chinese out of the goldfields and out of Australia.

MR WILLIAMS:   It would not, in our submission, be necessary to take that further step if the State were unable to protect or if this State protection were ineffective.

GLEESON CJ:   But you need to take that extra step, do you, in this case because unless and until you take that extra step there is nothing more to it than a relatively small group of males, including but not limited to the husband, behaving in a certain fashion towards an individual female?

MR WILLIAMS:   Yes, your Honour, and not for a Convention reason.

GLEESON CJ:   When you say “not for a Convention reason”, if the allegations are true, those males are certainly behaving towards her in a manner to which they would not behave towards another male.

MR WILLIAMS:   That is so, your Honour, but the motivation is not, as the Tribunal found, connected to any Convention group.  The persecutor in the present case does not persecute women generally, does not commit acts of violence against women generally.  The persecutor attacks his wife and attacks his wife, as the Tribunal found, for personal reasons unconnected to membership of a group.

GLEESON CJ:   I perhaps misstated the facts when I limited the alleged possible persecutors to people who were males.  There is evidence, is there not, according to the allegations that have been made, of members of a family group, including at least one female, who are behaving in a particular way?

MR WILLIAMS:   Yes, your Honour.

GLEESON CJ:   But that cannot amount to persecution, you say?

MR WILLIAMS:   Not on the findings that the Tribunal made because the motivation was not to persecute the respondent for reasons of her membership of a Convention group.  The motivation was personal.

GLEESON CJ:   So then, if the judgment of the majority in the Full Court is correct, you look at what the State is doing or not doing and your proposition is, is it, that mere inaction by the State in the face of this kind of conduct by that group of people towards this individual can never amount to persecution by the State?

MR WILLIAMS   The qualification that your Honour adds “in the face of this persecution” really takes the issue to the second of the ways ‑ ‑ ‑

GLEESON CJ:   No, I said “in the face of this conduct”.  In the face of the conduct of the members of the family towards this individual.

MR WILLIAMS   That qualification really takes the issue to the second of the ways in which Justice Lindgren put it in the Full Court.  The first way was “inaction by the State of itself, by itself, can be considered as persecution”.  The husband’s violence, the family’s threats of violence are just the occasion for an example of State persecution.

KIRBY J:   This is Mr Basten’s suggestion, we have to shift the focus from what is happening in the family to what the State is doing or not doing.

MR WILLIAMS   That is so.

GLEESON CJ:   Because, by hypothesis, what the family is doing cannot amount to persecution.

MR WILLIAMS   Because of its motivation – its lack of convention and motivation.

GLEESON CJ:   So it is either persecution by the State or nothing?

MR WILLIAMS   That is the first of the ways in which Justice Lindgren put it in the Full Court, that the inaction by the State, by itself, could constitute persecution or, rather, the withholding of protection could, by itself, constitute persecution.

GLEESON CJ:   And why can it not?

MR WILLIAMS   Because inaction, by itself, is not persecution.  It requires to fall within the ordinary meaning of the word “persecution”.  Some element of activity and harm is involved and the mere failure of the State to act, considered by itself, does not fall within that ordinary meaning.

GLEESON CJ:   Inaction never takes place in isolation.  If you have the power to stop somebody beating up somebody else, if you are an adult male and you see one small child beating up another small child, standing by and doing nothing might from one point of view be inaction and from another point of view it might be action, especially if you happen to be a school teacher patrolling a playground.

MR WILLIAMS   We accept that, with respect, but in terms of the ordinary meaning of persecution something more is involved.

GLEESON CJ:   I am just talking about the ordinary meaning of the word “inaction”.

MR WILLIAMS   Yes.  It is a word that has shades of meaning.

KIRBY J:   But if you asked yourself, putting down Klemperer’s book, “How did the Nazis persecute the Jews, the Gipsies and others in Germany?”, the answer would be, “They had radio broadcasts, they had big meetings, they had bashing up and so on”, but it would also include that they did not give the protection – they omitted.  It was both positive and negative action and omission.  So, I just do not think the strict dichotomy you are suggesting is really compatible with the history of persecution, it is both.  It can be both.

MR WILLIAMS:   It is difficult in the example that your Honour posits to separate out one element from a thoroughgoing campaign of persecution that, on any view, was active, and say, if nothing else had happened, that element there might or might not have been persecution.

GLEESON CJ:   To describe conduct as inaction makes an assumption about the presence or absence of responsibilities.  You might describe as inaction the conduct of a stranger who does not intervene in a fight between two little children, but if you are a school teacher with responsibilities of protection for all the children in a playground and you do not intervene in an episode of bullying, your conduct is not mere inaction, is it?

MR WILLIAMS:   It is inaction in circumstances of particular responsibility to act.

McHUGH J:   The discrimination here has little to do, in one sense, with the question of violence, has it?  That happens to be the factum upon which the persecution operates.  The real persecution here is the discrimination by the State.  The State discriminates against women by refusing to give – well by not giving women their protection, and it would not matter whether it was employment or violence or anything else.  So it does not seem to me to lead anywhere just to talk about omission.  The persecution here is the discrimination.  These women are discriminated against because the State will not do anything to help them, or does not do anything to help them, so they are discriminated against.  Is not that the persecution?

MR WILLIAMS:   In our submission, no.  The persecution, if one asks, “What does the respondent fear?” – the question might be a compound one, but the first part would unquestionably be the violence of her husband and his family.

KIRBY J:   That was the answer she gave to the Tribunal and they recorded that, but if you dug a little deeper, she could have said, “I fear that I can go to the police station once, twice, thrice and four times, and they will not give me any protection.  I am completely vulnerable and I am greatly concerned because of what I read about stove injuries and so on, that I am just bereft of any protection from the State, and that this is a form of persecution.”  True, it is not propaganda or even law.  It is withdrawal of law.

MR WILLIAMS:   Our first proposition is that that withdrawal of itself without the harm feared from the husband – and this is Justice Lindgren’s first proposition – does not of itself constitute persecution because it does not ‑ ‑ ‑

KIRBY J:   You have conceded though, I think, that withdrawal or omission can be persecution but only in the context of positive action, is that correct, in answer to my case concerning the German positive and negative aspects of persecution?

MR WILLIAMS:   If it went as far as incitement, which resulted in private individuals directing harm at members of the group for reasons of the group membership, then that would constitute Convention-based persecution.

KIRBY J:   Let me get it completely clear.  That would, the incitement, on any view, amount to persecution, but if there is incitement and there is also a withdrawal of State protection for a social group, then you concede that the withdrawal of State protection, in that context, can be an aspect of persecution.

MR WILLIAMS:   In that situation the persecution is the harm feared from the individuals.

KIRBY J:   Yes, but the harm can be feared by reason of not only the wild broadcast and the unjust law, but also that there is no protection from the authorities.

MR WILLIAMS:   The active incitement of the authorities can constitute ‑ ‑ ‑

KIRBY J:   Yes, there is no debate about that.  That is undoubtedly persecution.  Do you accept, for the Minister, that the withdrawal of State protection, in that context, can also be an aspect of persecution?

MR WILLIAMS:   If your Honour is positing the question short of active incitement, no.

KIRBY J:   But in the context of active incitement?  I do want to get the answer to this question.

MR WILLIAMS:   In the context of active incitement, yes, because it then forms - - -

KIRBY J:   You say it is a sine qua non.  It is absolutely imperative, in every case, that there must be within the dictionary definitions the position act.  I think this is Justice Hill’s view too.

MR WILLIAMS:   Yes.

KIRBY J:   That omission, on its own, is not enough, but in the context of commission, omission can be an aspect of persecution as well.

MR WILLIAMS:   Because the fear and - the Convention goes to the fear rather than the actual persecution.  The fear, in that situation, is of harm incited by the State, individuals acting, as it were, in concert with the State, having been induced by the State to act.

GLEESON CJ:   Mr Williams, I would like to understand a little better than I do the difference between the two ways Justice Lindgren had of looking at the case.  Could you just explain that?

MR WILLIAMS:   The first way in which his Honour put it is that to which I have taken the Court.  The second way - - -

GLEESON CJ:   This is paragraph 130?

MR WILLIAMS:   Yes, your Honour, and developed particularly to its conclusion in paragraph 137.

GLEESON CJ:   What is the difference between the form of persecution described in paragraph 123, and the form of persecution described in the first sentence of paragraph 130?

MR WILLIAMS:   The first focuses exclusively on the State.

GLEESON CJ:   No, it does not.  The conduct of the State is withholding protection against violence.  The violence is in there whichever way you look at it.

MR WILLIAMS:   His Honour develops that slightly in paragraph 124, your Honour.

GLEESON CJ:   “Failure to protect”, failure to protect against what?

MR WILLIAMS:   Failure to protect against violence, but his Honour’s analysis endeavours to separate the two approaches out.

GLEESON CJ:   Can you just explain the difference.

MR WILLIAMS:   Your Honour, we apprehended the difference may not be as sharp as it appears to be in his Honour’s reasons.  His Honour has identified the two kinds of persecution separately.  We are not sure that there is a valid distinction between the first way that his Honour puts it, the conduct of the State alone, with the violence of the husband merely being the occasion for the failure of State protection and the first of the alternatives in the second way his Honour puts it, that is the combined violence of the husband and the failure of the State.

There is a conceptual difference, if I might describe it as the third way, where the perpetrator of the violence has knowledge of the State failure and acts with that knowledge and would not have acted – well, I do not want to use the term “but for” – but is motivated in part by the knowledge that the State will fail to protect.  But, for our part, we are not sure that there is a conceptual difference between the first way in which his Honour puts it and the first of the two alternatives.

McHUGH J:   I may have misunderstood what his Honour said, but I thought that the key was in the expression, “routinely withheld”, so that at paragraph 123 he was really referring to a positive policy of the authorities in Pakistan to “routinely” withhold, whereas in the second alternative at 130 he was dealing with pure omission.

MR WILLIAMS:   We have not read the judgment in that way.  It may be susceptible of that interpretation, but we are not sure for present purposes that ‑ ‑ ‑

McHUGH J:   In other words, I read the first statement at 123 as, in effect, really, authorities are conscious of what is going on, but they routinely withhold protection, and, in the second, it does not matter, you have this husband violence and there is just a simple lack of State protection.  You just do not do anything, full stop, whether they are conscious of it or not.

MR WILLIAMS:   Yes, the judgment may be susceptible in that reading.

GUMMOW J:   Now, where are we left with the factual basis for all of this, namely, where are we left with any knowledge of what the law in Pakistan is about these domestic violence matters?  Do we have any knowledge of that?  We just have some assumptions, do we?  I understand Pakistan to some extent is a federal State, for starters.  We do not know what province all this is happening in, do we?

MR WILLIAMS:   There was limited evidence before the Tribunal on that matter.

McHUGH J:   It really has to stand or fall, has it not, on the submission from Peter Bollard & Associates at page 81 and following?

MR WILLIAMS:   That is so, your Honour.  The Tribunal did not make any express findings in respect of that material.  Your Honours, we apprehend that much of Justice Lindgren’s first approach is based upon a reading of the decision of this Court in Chen.  In our submission, Chen is a different case because it involved the implementation of a State policy that operated, of itself, to oppress members of the particular social group by denying them access to food, shelter, medical treatment and education for children.  But such a policy does operate of its own force to have that oppressive effect without the necessity for actions by other individuals.

GLEESON CJ:   I am not suggesting it is this case, because I do not know enough about the facts and the facts, as you say, were not found in some respects, but suppose you had a State policy of inactivity involving a conscious decision not to become involved in domestic disputes where the foundation of that policy was a belief, perhaps a religious belief, as to the role of the head of the family.  In other words, does the reason for the State policy matter?

MR WILLIAMS:   Not when one is considering whether or not there is persecution.

GLEESON CJ:   A possible reason for States not wanting their police to get involved in domestic disputes might simply be one of resources.

MR WILLIAMS:   Yes.

GLEESON CJ:   But there might be other reasons of the kind that I just mentioned.  Are they relevant?

MR WILLIAMS:   Not at the stage of considering whether or not there is persecution.  Persecution focuses on the harm feared.

GUMMOW J:   The persecution here seems to be persecution encouraged by religion, which page 85 makes clear.  What significance do those cultural imperatives have on the questions that were involved here?

MR WILLIAMS:   On the questions of construction of the Convention?

GUMMOW J:   No, on the question of what the police do and do not do.  The police may want to be regarded as good Muslims by their superiors and by their colleagues and by the public generally. 

MR WILLIAMS:   Those factors may well prove critical in determining the validity or acceptability in a Chen sense of the State policy or the reasons for the State inactivity, if that be found.

CALLINAN J:   It seems to be more than that, though.  There is a reference to the deliberate “Islamization of Pakistani society”.  It seems to be more than a toleration.  The suggestion seems to be a deliberate policy of discrimination against women.

GLEESON CJ:   The name of the country is, is it not, the Islamic Republic of Pakistan?

MR WILLIAMS:   I believe so, your Honour, yes.

CALLINAN J:   Well, where does that leave all women in Pakistan?  Are all women in Pakistan either discriminated against or liable to be discriminated against, or all married women, perhaps?

MR WILLIAMS:   It may be so that by reason of the State religion women are cognisable as a social group and that there is general discrimination against women.

CALLINAN J:   It is a huge social group.  All women – I do not know, perhaps all women in Islamic society in Pakistan are potential brides or wives, so they are all part of a social group.  But it is half the country.  What do you do about that?

MR WILLIAMS:   Our submission, your Honour, is that that would operate through the question of causal nexus.  We see no difficulty with the notion that a social group can be very large.

CALLINAN J:   But half the population except for a few lucky ones whose husbands do not subscribe to the same discriminatory view, but there probably are not a lot of them.

MR WILLIAMS:   We do not submit that the size of the group would make it incapable of being a Convention‑based group, but the size would have this significance, that if the group is very large, then one has to consider the persecution fear and determine whether the persecution is feared for reasons of membership of the group, adopting the analysis of your Honour Justice McHugh in Applicant A.  If the group is very large, then it is going to be much more difficult to show that the particular persecution is feared for reasons of membership of that group.

GUMMOW J:   Is there any evidence of the extent to which the sharia is embodied now in Pakistan law?

MR WILLIAMS:   The evidence, as I recall it, your Honour, went to show only that it was a proposed law.

GUMMOW J:   Is there evidence of that?

MR WILLIAMS:   I will have that turned up, your Honour.  There are no findings by the Tribunal about it.

GUMMOW J:   It is the usual problem in these cases.

GLEESON CJ:   It would be very dangerous for us to make any assumptions about the role of women in Islam.  Our combined knowledge of that subject would probably fit into a thimble.

MR WILLIAMS:   We do not invite the Court to enter upon that, your Honour.  At page 85, in answer to your Honour Justice Gummow’s question ‑ ‑ ‑

GUMMOW J:   That is talking about 1977 and 1984.  Things have moved since 1984, I suspect.

MR WILLIAMS:   The evidence, as I recall it – my friend will correct me if I am wrong – went no further than that.  It was a proposed law at that time.  The distinction that we seek to draw from the decision of the Court in Chen 201 CLR 293 turns upon the directness with which the persecution in question there operated upon the subject group. The relevant passage in the joint judgment commences at page 302. At paragraph 24 of the joint judgment there is a reference to the “common thread” and at paragraph 25 the joint judgment emphasises “conduct”, “discriminatory conduct”, conduct for a Convention reason. “Conduct” is a term that usually connotes activity.

GUMMOW J:   What is meant by the phrase “Convention reason” – by reason of?

MR WILLIAMS:   For reasons of race, religion – the five enumerated grounds.

KIRBY J:   Both Applicant A and Chen concern the so‑called one‑child policy in China.

MR WILLIAMS:   Yes.

KIRBY J:   In this Court Applicant A held that the parents, the mother and father involved, could not claim protection of the Convention.  In Chen it was held that a black child could.  Would you remind me what the point of distinction of the Court was on that apparent difference?

MR WILLIAMS:   In Chen the group was capable of definition without reference to the persecution.  Chen, of course, was common ground that the conduct in question was persecution, but in Applicant A the Court held that it was impermissible to seek to define the group by reference to the persecution feared.  In Chen the group was defined by reference to the existence of laws that discriminated directly against the members of the group.

KIRBY J:   But there were laws that discriminated directly against parents in Applicant A, were there not?

McHUGH J:   I do not think there were.  I think it was done at a sort of executive level, was it not?

MR WILLIAMS:   There were policies that discriminated against persons who took themselves outside the one-child policy, but there was that further step involved.  The parents were capable of adhering to the policy, and if they did so, then they did not fear persecution.  It was only if one took the further step of defining the group by reference to those who choose not to adhere to the policy that one could define a group which feared persecution for reasons of membership of the group. 

GLEESON CJ:   In the second-last sentence in paragraph 2 of the joint judgment in Chen, there is a finding of the Tribunal recorded and a reference to the fact that the finding was not in question in this Court. 

MR WILLIAMS:   Yes.  So, although Chen did not determine the meaning of “persecution”, there are observations in the joint judgment in relation to it.  The central passage in Chen is in paragraphs 29 to 31, and our submission is that those passages focus upon the denial of access to essential services, denial of basic needs. 

GUMMOW J:   Well, it is something you were born with. 

MR WILLIAMS:   Yes. 

KIRBY J:   Why is not access to the law and the rule of law an essential need?  The new provisions of the Act seem to indicate that the Parliament of Australia thinks they are. 

MR WILLIAMS:   The denial in question, in Chen, was one that operated directly of itself and without law to have the persecutory effect.  We draw the distinction in the present case, from a denial of a service which, of itself, without the intervention of others, does not have a harmful effect capable of amounting to persecution. 

GLEESON CJ:   But what, if anything, do we know about the access that a woman in the respondent’s position has to the law in Pakistan? 

MR WILLIAMS:   There are no findings by the Tribunal on that, your Honour. 

KIRBY J:   Well, there is only the fact that she went four times, and four times she was given the brush-off.  I mean, you do not have to be too perceptive not to draw a certain inference from that.  She even went with her brother-in-law, the brother of the alleged assailant. 

MR WILLIAMS:   It may be that a certain inference was available.  The Tribunal did not enter upon the question. 

GLEESON CJ:   What would be the inference you would draw about what her position would have been if she had been rich enough to go to a lawyer? 

MR WILLIAMS:   The inference in that case may have been quite different.  There were no findings about her ability to access the courts.  There was some evidence about discrimination against women in Pakistani law, in the courts, as to the weight of their evidence and the like, but the evidence went no further than that. 

GUMMOW J:   But can they sue their husbands for assault? 

MR WILLIAMS:    One presumes so, your Honour. 

GUMMOW J:   Well, one does not know. 

KIRBY J:   Is that suggested to be a reason why the police do not take action in these cases, because there is a legal provision that puts a woman complainant at a disadvantage? 

MR WILLIAMS:    No, your Honour. 

KIRBY J:   There is a legal provision in respect of allegations of rape or adultery, is there not, that you have to have two women witnesses, is that correct or not?  I have read that somewhere.

MR WILLIAMS:   Yes, that is referred to in Islam and I think also in the evidence before the Tribunal, but again there are no findings about it.

GLEESON CJ:   That is the reason this matter was sent back to the Tribunal, so that findings about these sorts of things could be made.

MR WILLIAMS:   Yes, your Honour.

GUMMOW J:   The sooner that is done the better.

MR WILLIAMS:   The basis on which special leave was sought and granted was that the proper construction of the Convention did not give rise to further issues that the Tribunal was obliged to ‑ ‑ ‑

GLEESON CJ:   Right.  Well, behind that there must be the proposition, which must ultimately be your proposition, that whatever the Tribunal found about matters of that kind could not affect the outcome of this case.

MR WILLIAMS:   That is so, your Honour, and we put that for two reasons, both deriving from the central proposition that persecution and protection are separate concepts in the Convention and that it is impermissible to use the reasons for an absence of State protection to colour one’s finding or to elevate the nature of the persecution feared to being a Convention‑based fear.  Now, apart from Chen, we refer also to ‑ ‑ ‑

GUMMOW J:   Well, wait a moment.  The relief you seek is what, to reinstate Justice Branson, is it not?

MR WILLIAMS:   No, your Honour, to reinstate the decision of the Tribunal, to set aside Justice Branson’s orders.

KIRBY J:   You want an order dismissing ‑ ‑ ‑

GUMMOW J:   Yes, that is right, that the Tribunal be upheld.

MR WILLIAMS:   Yes, your Honour.  That view would follow ‑ ‑ ‑

GUMMOW J:   And nobody hearing – no more evidence.

MR WILLIAMS:   No, your Honour.  That view would follow if our central proposition is correct, that there is a distinction between persecution and protection in the structure of the Convention and that it is impermissible to use one to colour the other.  If we are wrong about that proposition, then we accept that the matter would need to go back.

GLEESON CJ:   Sorry, say that again.

MR WILLIAMS:   If we are wrong about that central proposition, if the absence of State protection, for example, is capable of amounting to persecution, first to the way as Justice Lindgren put it, then we accept that the matter would need to go back to the Tribunal.

GUMMOW J:   Well, that is not any relief you seek in your notice of appeal.

MR WILLIAMS:   No, your Honour.  If we are wrong about that proposition, the appeal would be dismissed, the orders of Justice Branson as upheld by the Full Court would flow.

GLEESON CJ:   Yes, thank you.

MR WILLIAMS   Our submission is that decisions of this Court, which are quoted in paragraphs 23 and 24 of our submissions, have adopted meanings of the phrase “being persecuted” that are akin to its ordinary meaning.  We refer in those submissions to Chan and if I might take the Court to the decision in Minister v Ibrahim (2000) ALJR 1556. There is a discussion in that decision by Justice McHugh who was dissenting in the result but not, as we apprehend it, on this issue, which summarises much of the material in relation to persecution. That discussion commences at paragraph [55] on page 1565.

KIRBY J:   Which paragraph is it?

MR WILLIAMS   Paragraph [55], your Honour.  We rely, particularly, on the concluding words:

persecution always involves the notion of selective harassment or pursuit –

The judgment then discusses in the succeeding paragraphs other decisions in relation to persecution and quotes from your Honour Justice Gummow in Applicant A and in paragraph [61]:

Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it.

Your Honour Justice McHugh then applies that approach in paragraph [102] in formulating an approach for the Tribunal to follow, at least in the circumstances of a case such as that raised in Ibrahim.  It is in the second half of paragraph [102]:

among the questions which the Tribunal should have asked were (a) what harm does the applicant fear on his return to Somalia? (b) is that fear well‑founded? (c) why will the applicant be subjected to that harm?

Our submissions is that the focus is specifically upon the harm feared and that the terms of the judgment are inconsistent with a notion of persecution as being passive conduct withholding by the State. 

The appellant accepts that the role of the state of nationality is central to the operation of the Refugees Convention, the purpose of which is to provide in the limited circumstances referred to in the definition, surrogate international protection where State protection is unavailable, however, the appellant contends that State protection, or the absence thereof, does not operate through the phrase “being persecuted” but rather through the later words of the definition.

The issue is discussed in the decision of the House of Lords in Horvath v Secretary of State [2001] 1 AC 489. The narrow point that case decided is referred to in the headnote at the bottom of page 489 concerning the standard of police protection required of the country of origin of a claimant. On that narrow point and on the outcome of the appeal their Lordships were unanimous, however, there was a significant divergence of approach between Lord Lloyd, on the one hand, and the remainder of the House as to the construction of the term “persecution” in the Convention definition. The issue is identified at page 494 in the judgment of Lord Hope at about point F. The question is:

does the word “persecution” denote merely sufficiently severe ill‑treatment, or does it denote sufficiently severe ill‑treatment against which the state fails to afford protection?

His Lordship’s analysis at page 495 starts at about point B by considering the purposes of the Convention, referring to the failure of State protection as being central to the whole system.

At page 497, at about point F, his Lordship accepts “that there are indeed two tests that require to be satisfied”, but concludes that they are each “linked to each other” by the purposes of the Convention.  Each test, as his Lordship held, is founded on the same principle.  His Lordship concluded that State protection had a “part to play” in each.

CALLINAN J:   What about if the absence of State protection stems from laziness or incompetence rather than from a deliberate - indeed, perhaps a deliberate but unspoken, policy?  Let us say there is no, as a word, “malice”, or no intention to withhold protection, it just is not provided because – well, for a number of reasons: laziness, incompetence, lack of interest, what happens then?  Is that persecution?

MR WILLIAMS:   If the failure went only to incompetence and was not part of either a policy or a practice of State authorities, then I apprehend it would be common ground that that would not introduce protection obligations, but there are no findings.

CALLINAN J:   In effect, persecution has to be intentional?  Does that not follow?  It might be intentional withholding of protection, but there is an underlying intention to implement a policy?

MR WILLIAMS:   There may be an intermediate position, your Honour, if  there were simply a recognisable practice in the organs of government charged with responsibility for ‑ ‑ ‑

CALLINAN J:   Practice involves intention, does it not?

MR WILLIAMS:   It need not.

CALLINAN J:   Can you give me an example of a practice that does not stem from or is not an implementation of an intention?

MR WILLIAMS:   It could simply be a scarcity of resources leading, on a regular basis, to insufficient attention being given to crimes of this particular kind.

CALLINAN J:   Has the Tribunal got to examine the economics of the country and see how the resources are to be, or have been, apportioned?

MR WILLIAMS:   That would be one of the issues that would arise if the matter were to go to ‑ ‑ ‑

CALLINAN J:   How could a Tribunal do that?  It just seems to me to be totally unrealistic.

MR WILLIAMS:   That is an issue that would arise for the Tribunal if it were to go back.

CALLINAN J:   What, that it looks into the economy of the country and then apportions priorities?

MR WILLIAMS:   There are certainly difficult issues.  The question for the Tribunal would be whether there is a practice of the State founded upon discrimination against the group for the Convention reason.

CALLINAN J:   I still cannot see how you can have persecution without some intention.  I think it is totally unrealistic and impractical to expect the Tribunal to examine the economy of another country and to make judgments about the appropriate priorities in it.

MR WILLIAMS:   On our approach, that issue would not arise, your Honour.

KIRBY J:   This Court has said, has it not, that malice or intention is not an essential ingredient of persecution.  That you can have persecutions through indifference and through complete lack of attention to your obligations.  I think that has been said in a number of cases, has it not?

MR WILLIAMS:   There is a passage that goes almost that far in Chen, your Honour.

CALLINAN J:   What is the clearest example of that, of what Justice Kirby has put to you?  What is the strongest example of it?  You say there is something in Chen.  Where do I find that?  I may be wrong, but I thought a number of reasons have said something like that.  I think Mr Basten might refer to them in his submissions.

MR WILLIAMS:   Paragraph 33 of Chen is the passage in question.  There is a passage in the judgment of your Honour Justice Kirby which takes the further step that your Honour referred to.  Paragraph 33 goes so far and, we submit, only so far as to say enmity or malignity are not essential elements.

CALLINAN J:   You can have intentional conduct that is not enmity or malignity.

MR WILLIAMS:   Yes.

CALLINAN J:   How can you persecute somebody without having an intention about it?  Even if it is only an intention to withhold protection.

MR WILLIAMS:   Our submission is that the Convention requirement of “for reasons of” nevertheless imports an element of motivation, even if not of enmity or malignity.

CALLINAN J:   Right, so there has to be motivation or intention, I take it.

MR WILLIAMS:   Yes, the persecution has to be able to be said to be for reasons of the Convention attribute.

CALLINAN J:   Which involves an element of deliberation, to put it another way.

MR WILLIAMS:   It will in most cases.

CALLINAN J:   What cases will it not?  That is what I would like to know.

MR WILLIAMS:   There might be spontaneous persecution which is, nevertheless, directed at persons for one of the Convention grounds.

KIRBY J:   My passages at 63, where I suggested that there were just too many historical examples in the last century of “indifference” being the foundation of persecutory policies.  I think there is a question to be determined here.  It came up in Chen over the proposition that you had to have a maligned intent, and I think you are correct to say that the Court has not embraced that.  Query, whether it has gone as far as to say that by indifference and inactivity and failure to give the protections, picking up the Chief Justice’s point, a person with responsibility could be expected to give, that that can amount to persecution.  I think that is the important point, that this case presents to the Court, can you have - does the concept, the notion of persecution involve not just doing awful things to people but doing nothing to protect them when they are having awful things done to them by others.

MR WILLIAMS:   That is the issue we put at the forefront of our submissions.

GUMMOW J:   We have had complaints about inadequate policing in Cabramatta – pretty close to home.  Do those sort of questions get involved in this debate?  What was this other country – through lack of resources?

MR WILLIAMS:   Those are issues that would arise if the Tribunal were obliged to investigate the existence or otherwise of a State practice of withdrawing or withholding protection from members of a particular social group.

CALLINAN J:   Look, Mr Williams, I could not conceive of the Tribunal analysing the economy of Somalia and allocating priorities of government expenditure there.  Is that not totally unrealistic?

MR WILLIAMS:   Your Honour, that is a matter that I will leave my friend to answer.

CALLINAN J:   Well, you are representing the Minister.

MR WILLIAMS:   Our submission is that the issue does not arise because, on a correct construction of the Convention, the matter should not go back.  If the matter does go back, those are issues that will, or at least may, arise before the Tribunal as the Tribunal will have to determine issues relating to the failure of State protection.

McHUGH J:   But, in Chan – it seems a long time ago now, I said that:

The threat need not be the product of any policy of the government . . . It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution –

and I referred to a number of authorities, including Professor Goodwin‑Gill, a number of articles, a number of cases.

MR WILLIAMS:   Your Honour was referring to Convention persecution there, rather than to an absence, persecution for a Convention reason.

McHUGH J:   Well, I was talking about the question of persecution.  I mean, persecution is one thing.  For the reasons of is another thing.  There are two different concepts.

MR WILLIAMS:   Yes, but we have no difficulty with the proposition that if the State is unable to protect those who fear persecution for a Convention reason, that that will fall within the Convention, that will raise Convention obligations. 

Your Honours, in relation to Horvath it is necessary that we rely upon the judgment of Lord Lloyd, who on this point, though not on the ultimate issue, was in a minority. The relevant passages on which we rely commence at page 502. At the bottom of that page his Lordship refers to the position in the Court of Appeal and, at the top of page 503, states that:

it has been settled law since –

Jonah’s Case, to which your Honour Justice McHugh referred in Chan –

that persecution should be given its ordinary dictionary meaning.

That appeared to be common ground, but the submission was put in that case that:

the ordinary meaning of the word “persecution” does not involve a failure of state protection.  But he submitted that in the present context the word bears a different, and more limited, meaning.

GUMMOW J:   But part of the trouble is that the matters Justice Callinan has been raising with you have not been in the forefront in the past because one has been considering the activities of totalitarian States, which are effective State apparatus structures whereby there is a withholding of authority that is certainly there.  No one doubts that the police could have been sent in in 1938 to stop Jewish shopkeepers being beaten up, but where you have a State that does not have, and is not taken to have those efficient characteristics you get into problems.

CALLINAN J:   Could I add to Justice Gummow’s example, in 1938 you had highly inflammatory speeches being made by the head of the State and his supporters who were part of the government and, of course, the Convention was actually formulated with a very recent knowledge of all of those matters.  So the matter that Justice Gummow has put to you really has not been dealt with, never been confronted.  I do not think the House of Lords confronts it either.

GUMMOW J:   It is rather naïve because they seem to assume that there is this efficient modern State as we understand it which can operate at optimal efficiency.  That just is not so in relation to a number of these countries, I suspect.

CALLINAN J:   Not only elected parliaments, but also bodies set up to supervise the police forces and various other organs of the State.  It really is quite unrealistic to try to apply those sorts of standards that we have to these other countries.

MR WILLIAMS:   Certainly the analysis in the court below is one which could be seen as far removed from the original purposes of the Convention, the original kinds of persecution that were in contemplation at the time at which it was formulated.  We are not suggesting that is a static meaning, but it does have some significance for the construction that is to be given to the document, the historical context in which it was negotiated.

So, your Honours, still on page 503 of Horvath, Lord Lloyd, upon whom we rely, at about point G on the page, adopts the concept of surrogacy, but sees no reason to let the idea of State protection form part of the formulation of persecution and at the top of page 504, his Lordship adopts the test that the:

tribunal should first assess the ill-treatment, and answer the question whether it amounts to persecution for a Convention reason, and then, as a separate question, evaluate the protection available to the applicant.

His Lordship sees:

no advantage in running these two questions together.

GUMMOW J:   What was it that founded the conclusion that there was a sufficiency of State protection in Slovakia?  What was the evidence about all that in Horvath?

MR WILLIAMS:   The evidence was broadly to the effect that there was a functioning police apparatus ‑ ‑ ‑

GUMMOW J:   I am sure there was.

MR WILLIAMS:   ‑ ‑ ‑ that it did not provide protection at a level that prevented Mr Horvath from being violently assaulted on several occasions, but nevertheless that the State was, in effect, providing a reasonable measure of protection and that that was sufficient.  Their Lordships were unanimous on that conclusion that that was a correct approach.

MR BASTEN:   That would be the test we would say anyway.

GLEESON CJ:   Certainly if the facts found or asserted to be true by the House of Lords in Islam were found by the Tribunal, that would seem to be sufficient on your argument.

MR BASTEN:   Yes, it would be, your Honour.  I think if one goes back to the Court of Appeal decision in Islam, there is a more complete statement of the facts which were found by the Immigration Appeals Tribunal in that case.  I do not wish to go into a debate as to whether the House of Lords were finding facts, but I think there were further matters dealt with by the Tribunal in that case.  Certainly it is true in Horvath, for example, that the facts are not apparent from their Lordships’ judgments; one really needs to go back to the Court of Appeal.

Your Honours, the only other issue that I was going to address was a question concerning the role of religious beliefs, which I think both your Honour Justice Gummow and Justice Callinan asked in one form or a similar form this morning.  On my understanding, the question was whether, if something was done in a bona fide execution of a religious belief, which involved the imposition of violence, for example, on a woman, a prohibition of that activity would itself constitute persecution.  There are perhaps a number of answers to that proposition.  Firstly it is undoubtedly true that there can be a clash of principles, where principles are stated at this level of generality.  It is also true that one piece of conduct can give rise possibly to two separate claims and, your Honours, a classic example perhaps was Jeremiah v Ministry of Defence, as a discrimination case [1980] 1 QB 87, where in an employment situation it was said that a woman and a man, who have been treated differently, might both be able to reasonably complain of discrimination.

It is possible, in theory, that two people could complain of persecution on different grounds if, in fact, a clash of that kind arose, but I suppose it is hard for us to accept that the application of a general law of a criminal kind, which suppressed an extreme religious belief to the effect that one was entitled and perhaps obligated to impose violence on one’s spouse, would ever constitute persecution for the purposes of this Convention.  I know that it is a hypothetical question and no assumption is being made, but there is an underlying premise that it might be consistent with Islam that such an approach be adopted. 

Obviously this would be a matter for the Tribunal if it were to go back, but at page 94 of the appeal book there is a discussion at lines 15 to 25 in a human rights watch report, which was put before the Tribunal, as to the proper analysis of a religious law, which involved a contravention of a guarantee of equal protection on the basis of gender and that might well be an approach which would commend itself to a Tribunal dealing with such a case and this is even more intriguing, although hypothetical perhaps.  At page 25 there is reference to a constitutional amendment Bill, at line 30, which was apparently introduced in 1998, to make Shariah “the supreme law of Pakistan” with the effect of overriding any other constitutional protections, including against discrimination.

GUMMOW J:   Yes, that is what I had in mind.

MR BASTEN:   We do not know what happened to that.  That was only two years ago, of course.

GLEESON CJ:   Well, just a moment.  There has been a bit of water under the bridge since then, a bit of military law floating around now.

MR BASTEN:   That may well be right, your Honour, and all these things – that is why I am saying it is all hypothetical.  The point I was going to make was that the Tribunal would need to decide these questions in accordance with the state of affairs at the time of its decision.

CALLINAN J:   Because I do not know whether that amendment Bill was passed.

MR BASTEN:   No, I do not either, your Honour.  The irony which I was going to just note was at the bottom of that page – and this was no doubt under Prime Minister Benazir Bhutto to which your Honour the Chief Justice referred – in 1994 a Commission of Inquiry was established to:

“review all existing laws which are discriminatory to women . . . and to recommend amendments to bring laws and rules “in accordance with the injunctions of Islam –

so at least some people in Pakistan would not, apparently, accept that Islam is inherently discriminatory in its tenets

CALLINAN J:   Except some people, they might take a different view of what constitutes discrimination.

MR BASTEN:   Of course.  I was just making the point that we must not, perhaps – your Honour the Chief Justice referred to the thimbleful of knowledge, but ultimately, of course, it is not a matter for this Court to worry about, what the ultimate factual findings would be in that regard, but assumptions, perhaps, need to be made with care.  Your Honour, those are our submissions.

GLEESON CJ:   Thank you, Mr Basten.  Yes, Mr Williams.

MR WILLIAMS:   We have nothing in reply.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 3.29 PM THE MATTER WAS ADJOURNED