Minister for Immigration and Multicultural Affairs v Khawar

The High Court of Australia heard an appeal from the Minister for Immigration and Multicultural Affairs concerning an application for a protection visa by Ms Khawar, a citizen of Pakistan. Ms Khawar alleged she was a victim of domestic violence perpetrated by her husband and his family, and that the Pakistani state failed to provide her with effective police protection. The Refugee Review Tribunal had affirmed the delegate's refusal of her visa application, without making findings on the alleged police indifference or the broader context of the position of women in Pakistan.

The central legal issues before the High Court were whether a failure by a state to provide effective police protection against domestic violence, when perpetrated by non-state agents for non-Convention reasons, could constitute persecution for a Convention reason. The Court also considered whether the Convention requirement that a putative refugee be "unwilling to avail himself of the protection" of their country of nationality referred to protection within the country of origin or diplomatic/consular protection abroad. Finally, the Court examined whether a selective or discriminatory failure by the state to enforce criminal law against non-state actors assaulting members of a particular social group could amount to persecution under the Convention, and whether "women in Pakistan" constituted a particular social group for the purposes of the Convention.

The High Court reasoned that women, as a distinct and recognisable group, would constitute a particular social group regardless of how they are treated by males or governments. The alleged persecution, therefore, did not define the group. The Court held that the failure to make findings on the factual allegations, particularly regarding the police's indifference to Ms Khawar's complaints, meant the Tribunal had not properly considered her claim. The Court affirmed that a discriminatory failure by the state to enforce the law against perpetrators of violence against women could constitute persecution.

The High Court dismissed the appeal with costs, finding that the decision of the lower courts was correct. The matter was remitted to the Refugee Review Tribunal for further findings on the factual issues raised by Ms Khawar's claim.