Minister for Immigration & Multicultural Affairs v Khawar
[2000] FCA 1130
•23 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
Minister For Immigration & Multicultural Affairs v Khawar [2000] FCA 1130
MIGRATION – Refugee – Pakistani woman having a well-founded fear of violence from her husband and members of his family because of personal, family considerations – repeatedly seeking but failing to receive police protection – whether she feared “persecution” “for reasons of” “membership of a particular social group” for purposes of definition of “refugee” in Article 1A(2) of the Convention Relating to the Status of Refugees – relevance of issue of “hate or enmity” or other “attitude” of state as reason for failure to provide protection – whether Tribunal erred in law in thinking further inquiry otiose in view of fact husband and his family motivated by personal, family considerations.
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 considered
Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 applied
Ramv Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 discussed
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 referred to
Cheng v Canada [1993] 2 FC 314 referred to
Chan v Canada [1993] 3 FC 675 referred to
Attorney-General (Canada) v Ward (1993) 103 DLR (4th) 1 discussed
Re Mayers and Minister of Employment and Immigration (1992) 97 DLR (4th) 729 discussed
Sanchez-Trujillo v INS 801 F 2d 1571 (9th Cir.1986) discussed
Fatin v Immigration & Nationalization Service 12 F3d 1233 (3rd Cir. 1993) considered
Lwin v Immigration & Nationalization Service 144 F 3d 505 (7th Cir 1998) discussed
Sharif v Immigration & Nationalization Service 87 F 3d 932 (7th Cir 1996) referred to
Gomex v Immigration & Nationalization Service 947 F 2d 660 (2d Cir. 1991) referred to
Islam v Secretary of State for the Home Department [1999] 2 AC 629 followed
Basa v Minister for Immigration and Multicultural Affairs [1998] FCA 830 distinguished
Minister for Immigration and Multicultural Affairs v Ndeje [1999] FCA 783
Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 citedHorvath v Secretary of State for the Home Department, unreported, House of Lords, 6 July 2000 discussed
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v NAIMA KHAWAR AND ORS
N 1379 OF 1999
HILL, MATHEWS AND LINDGREN JJ
23 AUGUST 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1379 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPELLANTAND:
NAIMA KHAWAR AND OTHERS
RESPONDENTJUDGE:
HILL, MATHEWS AND LINDGREN JJ
DATE OF ORDER:
23 AUGUST 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2. The appellant pay the respondents’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1379 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPELLANTAND:
NAIMA KHAWAR AND OTHERS
RESPONDENT
JUDGE:
HILL, MATHEWS AND LINDGREN JJ
DATE:
23 AUGUST 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HILL J:
The question before the Court is whether, in a country where there is discrimination against women so that the police are unwilling or not interested in assisting a married woman who has been beaten by her alcoholically abusive husband, a woman who fears being beaten by such a husband and seeks asylum in this country can be found to be a “refugee” in accordance with the definition of that expression in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (compendiously referred to herein, unless the context otherwise requires, as “the Convention”).
The facts as found by the Refugee Review Tribunal and the decision of that tribunal and the decision appealed against are all set out in the judgment of Lindgren J which I have had the privilege of reading in advance. I do not repeat them.
The background to the Convention
Although it might be said that there have always been refugees, it was not until the 1951 Convention relating to the Status of Refugees that any general attempt was made by international consensus to provide international protection for a person who was a refugee and for that purpose to define who a refugee was. As the judgment of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 277-279 points out there had been a number of prior treaties dealing with particular refugee situations. The Convention and the events which led up to it were, as Hathaway in his The Law of Refugee Status Butterworths 1991 notes, a compromise between the reality of a seemingly unstoppable flow of involuntary migration across European borders and the increasing attempts of nation states to restrict immigration. That is not to say that the meaning of the Convention today must be confined to the problems that presented themselves to the international community in the early 1950’s (cf Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 568 per Kirby J) and it is clear enough that there has been a widening over the years of the persons who are genuinely in need of international protection. Nevertheless, the tension between the humanitarian purpose of international intervention to protect those in need of assistance and the legitimate domestic desire of states to limit migration must, to some extent, operate as a restriction on the ability of Courts to widen unduly the scope of the definition. Particularly, there is a danger of extrapolating, from the fact of ill-treatment or discrimination and the sympathy or indeed indignation which such ill-treatment or discrimination engenders in those who would wish to promote a civil society, a conclusion that in international law the person who is ill-treated or discriminated against is, just for that reason, a refugee.
Article 1A(2) of the Convention defines “refugee” as including a person who:
“ ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country…”
It will be noted that the definition contains, so far as is applicable to the present case, three elements all of which need be satisfied before a claimant will be entitled to be considered a refugee. These are, first, the well-founded fear of persecution, second membership of a “particular social group” and, finally, the connection between the two required by the words “for reasons of”. It will be necessary to consider in this case the meaning of each of these three elements.
An important starting point in exploring the operation of the definition in a case where the claimed persecution is said to arise by reason of membership of a social group, is the decision of this Court in Ramv Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 approved by the High Court, inter alia, in Chen. In that case Burchett J, with whom O’Loughlin and RD Nicholson JJ agreed, pointed to the “unity of concept” contained in the Convention definition, at least where the claim arises by virtue of membership of a social group. There was, his Honour wrote, a “common thread”, which linked the three concepts of the definition, namely, persecution, “for reasons of” and “membership of a particular social group”. That common thread was what his Honour referred to as a:
“motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.”
In the examples which his Honour thereafter gave, namely the persecution during the French Reign of Terror and the atrocities of the Pol Pot regime in Cambodia, the persecution in each case was not for what those persecuted may have done as individuals, but rather, it was the whole class which, in each case, was attacked. And this could be so, notwithstanding that some members of the class might have been able to avoid the persecution by hiding their background or because they were given assistance to do so through money or influence.
Persecution
Persecution involves, in a general sense, an element of harm which is not insignificant. It is not necessary in the present case to explore the outer boundaries of persecution or to consider in detail the discussion of the concept in the various judgments of Justices of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A, Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 and more recently in the judgment of Kirby J in Chen at 567-8. But it is important to construe the word by reference to the context in which it appears. Ill-treatment, even oppressive treatment, as such may not necessarily constitute persecution. In Applicant A, Gummow J adopted the formulation of Burchett J in Ram, namely:
“Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution.”
The emphasis in this formulation upon motivation or attitude has to be read subject to the later decision of the High Court in Chen.
As the definition of the word in the Australian Concise Oxford Dictionary reveals (a definition referred to by Kirby J in the passage cited), the connotation of the word is usually one associated with the present context, that is to say, the hostility or ill-treatment afforded is especially attributed to political or religious beliefs. One might add to this the words “or attributed to the membership of the social group of which the victim of the persecution is a member”.
Mrs Khawar has undoubtedly been ill-treated. The harm which the Tribunal found to have been perpetrated against her by her husband was horrendous by any standard. Except so far as the context requires that the harm inflicted arise by reason of membership of a particular social group there could be little doubt that the harm inflicted upon her could aptly be described as persecution. A different question arises if it is suggested that the persecution she suffered was not, as such, the ill-treatment from her husband, but the inactivity or inability of the police to prevent a repetition of the conduct. It would, in my mind, be an incorrect use of the word “persecution” to apply it to a failure or lack of interest by the police to come to the aid of a person who has been beaten at least where the law provides, if enforced, adequate protection and there is no government policy that police ignore calls for help. There is, and it is not a matter of which we can be proud, a lack of enthusiasm in the authorities in Australia to come to the aid of women who are victims of domestic violence, but it would not be suggested that the State is, or for that matter the police are, persecuting those women in Australia. Persecution involves the doing of a deliberate act, rather than inaction. The decision of the High Court in Chen might, at first blush, suggest otherwise. There, as will shortly be noted, the persecution held to exist consisted of the denial by the State of access to food, education and health beyond a basic level. Denial of basic human needs is, however, positive action, not inaction. State complicity in the ill-treatment may likewise be distinguished from mere inertia. It is important not to confuse the question whether what the State does itself constitutes persecution with the distinct question of whether the claimant is unable or unwilling to avail herself of State protection. Inertia by the State may mean that the State is unable or unwilling to protect the class of persons claiming to fear persecution, including the claimant. It seems to be relatively clear from the language of the Convention that for the persecution to be within the Convention it is not necessary that it emanate from the State. Where, however, the persecution does not emanate from the State, and provided that the necessary link exists between the persecution and political or religious opinion, membership of a particular social group etc, it may fall within the Convention where the State is unable or unwilling to protect its citizens from the persecution. So, for instance, those who oppose the Tamil Tigers may be persecuted by that group in circumstances where the State is unable or unwilling to prevent that. Yet those persecuted may seek the benefit of the Convention.
The Convention is only attracted where the harm inflicted is not, as such, an isolated act of harm to the person, a harmful act done on an individual basis, but something more is required. That something more is to be found in the link which is required to exist between the harm inflicted and the Convention ground, in the present context membership of the social group. It is convenient first, therefore, to consider the concept of membership of a particular social group before discussing the question of the necessary link that has to be found.
A particular social group
Uninstructed by authority, there would seem little difficulty in interpreting the phrase “particular social group” as it appears in the Convention. Both the word “particular” and the word “social” suggest that the group must be one that is identifiable in the society. Clearly society as a whole would not be a particular social group. Given the definition of “refugee” in the Convention there would seem to be scope for the view that the expression should be read ejusdem generis with the categories which have gone before – ie race, religion or nationality. That is to say it should be possible to point to some connecting thread among members of the social group (not being race, religion or nationality) that serves to identify that group. Given the significance which protection against discrimination has in the Convention one might expect that that common thread could be found in the circumstances upon which that discrimination is based. This is particularly so because there has to be a link between the persecution, on the one hand, and membership of the particular social group, on the other. However, the meaning of the expression is not without authority, although it would be idle to pretend that that authority is consistent on a world-wide basis.
The “traveaux preparatoire” to the Convention yield little assistance in understanding what was intended to be comprehended in the concept of “particular social group”. Goodwin-Gill notes in his work The Refugee in International Law that the words “membership of a particular social group” were introduced at the instance of the Swedish delegate to the 1951 Convention who simply stated that examples of such cases existed. None were stated by the delegate, perhaps because they were thought to be well known. Obvious examples can be imagined, for instance the petty bourgeoisie were regarded as class traitors in Stalinist Russia. Intellectuals have been the subject of persecution by many regimes, including Communist China during the Cultural Revolution and by the Pol Pot regime in Cambodia. McHugh J in Applicant A at 267 gives as an example the kulaks in Communist Russia as discussed by Judge Posner in Bastanipour v Immigration and Naturalization Service (1992) 980 F 2d 1129 at 1132. These are but examples of cases where persecution arose, not because of any particular beliefs that members of the class had, but by reason of their characteristic of being a member of a recognisable class. Hathaway at 159 suggests that, whatever the meaning of the phrase, the framers of the Convention did not intend that the addition of the phrase “particular social group” should serve as a means of addressing all future injustices.
The leading case in Australia dealing with the phrase is Applicant A. There, the applicants claimed to fear sterilisation and abortion (the feared persecution) because of a potential infringement of the one child policy of the People’s Republic of China. They claimed to be a member of a particular social group and that their fear of persecution arose by reason of their membership of that particular social group. The Tribunal allowed the application and the Minister’s application for review was dismissed by Sackville J. On appeal a full Court (Beaumont, Hill and Heerey JJ) allowed the Minister’s appeal. By majority (Dawson, McHugh and Gummow JJ, Brennan CJ and Kirby J dissenting), the High Court dismissed the applicants’ appeal.
The leading judgment of the majority was that of McHugh J, although each of Dawson and Gummow JJ gave separate reasons. It may be noted that the same issue had arisen in Canada and that courts differently constituted had arrived at different results (cf Cheng v Canada [1993] 2 FCP 314 and Chan v Canada [1993] 3 FC 675, cited by McHugh J in Applicant A at 263. His Honour’s judgment may be summarised, so far as is presently relevant, in the following propositions:
1.The meaning of the words “membership of a particular social group” must be construed in the light of the definition of “refugee” taken as a whole.
2.The more widely the particular social group is defined, the harder it will be to establish that the persecution is by reason of membership of that social group. The less widely the social group is defined, the harder it will be to establish that there is a social group.
3.The primary purpose of the Convention is the protection, relevantly, of those social groups who are singled out and persecuted “by or with the tacit acceptance of the government of the country from which they have fled, or to which they are unable or, unwilling to return”. (emphasis added) (at 257-8).
4.It would not matter that the person claiming to be a refugee is the only member of the group subjected to discriminatory conduct, so long as the persecution inflicted is so inflicted for a Convention reason.
5.The concept of persecution has no place in defining the term “a particular social group”. The persecution feared can not be the “defining characteristic” of the group in order for it to qualify as a particular social group. The group must “exist independently of, and not be defined by, the persecution.”
6.However, the actions of the persecutors may serve to identify or even cause the creation of a particular social group. This his Honour illustrated by the case of persecution of left-handed people by the State. The persecution would identify the group, but the group itself would exist by virtue of the attribute of left-handedness not the persecution.
His Honour, after giving this example, then continued at 264:
“The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in the ‘particular social group’ category is the notion of ‘membership’ expressly mentioned. The use of that term in conjunction with ‘particular social group’ connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group.” (original emphasis)
From his Honour’s judgment it would seem that for there to exist a particular social group within the Convention there must be a reasonably large group of individuals who are perceived by society as being linked or unified by some common characteristic, attribute, activity, belief, interest or goal not being persecution itself. Parents of one child were not a relevant social group, nor were parents in the reproductive age group, or parents with only one child who did not accept the limitations placed upon them, for the appellants did not have a well-founded fear of persecution by reason of membership of these groups. Their fear arose because of their refusal to abide by the one child policy.
Dawson J at 245 referred with approval to a comment made by the full Court of this Court that care had to be taken not to conclude from the fact that acts of persecution are abhorrent that those who are the targets of the persecution are members of a particular social group. What was necessary in his Honour’s view was to determine whether a circumstance or circumstances operated to unite people so that they were an identifiable social group apart from the fact that they faced persecution.
Gummow J referred to cases in Canada and the United States where differing opinions had been given as to he meaning of the phrase “owing to a well-founded fear of being persecuted for reasons of … membership of a particular social group”. I shall refer to some of these cases later, particularly the decision of the Supreme Court of Canada in Attorney-General (Canada) v Ward (1993) 103 DLR (4th) 1. His Honour then pointed to the danger in approaching the Convention as being designed “on a broad front, to advance humanitarian concerns”. His Honour’s warning to this effect seems, at least in part, directed at the view taken by both Brennan CJ and Kirby J in their dissenting judgments.
In his Honour’s view, the phrase “for reasons of” confined the notion of fear of being persecuted, identifying the motivation for the infliction of persecution and the objectives sought to be attained by it. Not every broadly defined segment of society would be a particular social group. Rather his Honour adopted the view of Burchett J in Ram to which reference has already been made. The disparate group of people who were at risk under the one child policy were not a particular social group within the Convention.
The subsequent decision of the High Court in Chen can be seen as modifying, at least in one respect, what was said in Applicant A. In that case the applicant, a child born in contravention of the one child policy of the People’s Republic of China claimed a well-founded fear of persecution by reason of membership of a particular social group, referred to in the judgment as “black children”, that is to say, children born outside the parameters of the one child policy and born of an unauthorised marriage. The Tribunal had found that such children were denied access to food, education and health care beyond a very basic level and faced discrimination, prejudice and ostracism. The Tribunal denied refugee status to the applicant because it was of the view that the adverse treatment would arise, not because of the direct action of the authorities, but because the parents, lacking financial resources, would be unable to avoid the consequences of the penalties imposed by the authorities. French J at first instance allowed the child’s appeal, holding that it was not necessary that the persecution be motivated by enmity or malignity. Rather it was sufficient if it was motivated by the possession of the attributes of the social group. On appeal to the full Court of the Federal Court, O’Loughlin and Carr JJ were of the view that the adverse treatment likely to be afforded the child was not by reason of the membership of the social group, “black children”, but rather a result of the parents’ conduct in contravening the Chinese laws. The full Court also held that “black children” could not constitute in law a particular social group. RD Nicholson J would have remitted the matter to the Tribunal to determine whether the child was a member of such a group, ie whether such a group existed as a matter of fact.
The primary issue in the appeal to the High Court was whether enmity or malignity was a prerequisite to finding that the claimed persecution came within the Convention. However, it was also argued that the claimed social group existed only because of and was delineated by the persecution. It may be noted that Gummow J was the only Justice common both to the Court which had decided Applicant A and the Court which decided Chen.
In a joint judgment, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ reversed the decision of the Federal Court. The Court distinguished the case before it from that arising in Applicant A because in Chen the group constituted by children born in contravention of the one child policy was a group which existed independently of and which was defined other than by reference to the discriminatory treatment or persecution which they feared. The distinction is made clear in the following extract from the joint judgment at 559:
“The circumstance that ‘black children’ receive adverse treatment in China is descriptive of their situation and, as McHugh J pointed out in Applicant A, that may facilitate their recognition as a social group for the purposes of the Convention but it does not define them.”
The Court had no difficulty in finding in the circumstances that there was persecution and that the persecution arose by reason of the child’s membership of the social group of “black children”. The Court said at 561:
“Once it is accepted that ‘black children’ are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that that treatment is for a reason other than his being a ‘black child’. As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute. However, it has not been suggested that that is the position.”
The Court also rejected the need for a finding of enmity or malignity. So, the fact that the treatment the child was likely to receive was not motivated by enmity or malignity did not operate to disentitle him to be considered a refugee. The Court remitted the matter to the Tribunal with a direction that the child’s application be dealt with on the basis that he was entitled to refugee status.
In my view, it does not follow from the fact that the Court was of the view that it was not necessary that the treatment which the child in Chen was likely to receive was not motivated by enmity or malignity, that motivation is an unnecessary element in the Convention definition. Gummow J, who was a party to the joint judgment in Chen, had held that it was in Applicant A. It was the nature of the motivation not the fact of motivation that was considered in Chen. As Burchett J had said in Ram in a passage which, as I have noted, was cited with approval by Gummow J in Chen, not every isolated act of harm will constitute persecution; there is a need for some element of motivation. That element of motivation may be found in the concept of persecution, or it may be found in the requirement that there be a link between the act of persecution and the particular Convention ground relied on (eg, as here, membership of a particular social group). The element of motivation is to be found discussed in the comment of McHugh J that what is involved is “selective harassment” of the requisite class of persons, even although the applicant may be the only person in the class who, in fact, is subject to discriminatory conduct (see at 258).
It is now necessary to refer to decisions in other jurisdictions in circumstances similar to that before us.
The situation in Canada and the United States
The leading authority in Canada in which the meaning of the phrase “particular social group” is discussed in Ward although the claimant in that case succeeded not on the ground of membership of a particular social group, but on the ground of persecution by reason of his political opinion. In that case the claimant had been a member of the Irish National Liberation Army (“the INLA”). Motivated by his conscience he had liberated captives taken by the INLA and subsequently given evidence against the INLA. As a result he was placed on the death list by that organisation and its supporters. The judgment of the Court, delivered by La Forest J, contains a detailed discussion of the meaning of the phrase “particular social group” and its place in the Convention, some at least of which has been subsequently followed or repeated in later cases. The phrase was not, in his Honour’s opinion, intended as a catch all category. It was to be interpreted by reference to underlying themes of human rights and anti-discrimination. Three possible categories could be adopted as working rules (see at 739):
“(1) groups defined by an innate or unchangeable characteristic;
(2)groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3)groups associated by a former voluntary status, unalterable due to its historical permanence.”
The first of these categories accords with the normal sense of the words. The category presupposes a unifying characteristic which identifies the group. In the second and third category, it is the voluntary association, present or past, which provides the unifying characteristic. One could conceive of persons who had banded together in a social organisation subsequently being persecuted because they belonged to that social organisation.
In Re Mayers and Minister of Employment and Immigration (1992) 97 DLR(4th) 729, a case decided after the Supreme Court of Canada had reserved its decision in Ward, but before that case had been decided, the applicant for refugee status had been abused by her husband before she fled to Canada. The authorities in Trinidad had apparently been indifferent to her pleas for help and took no action on her complaints after being assured that what had happened was “a domestic spat”. The Refugee Board had found that the applicant was a member of a particular social group, that being “Trinidadian women subject to wife abuse”. It was argued by the Minister in judicial review proceedings before the Federal Court of Appeal that in so holding the Tribunal had erred in law.
The Court found that the Tribunal had not erred in law. It is relevant to note that the Court appears to have accepted the test of particular social group attempted in Sanchez-Trujillo v INS 801 F 2d 1571 (1986), a decision of the United States Court of Appeals, Ninth Circuit. The Court cast doubt on the possibility that women could be, without qualification, a social group and left open the question whether the social group adopted, Trinidadian women subject to wife abuse, was really a group defined by the persecution itself. On the last two matters Mahoney JA, with whom Isaac CJ and Heald JA agreed, said at 739:
“The phrase ‘social group’ has a broad meaning in its ordinary dictionary sense but it is, in the statute, modified by ‘particular’. It seems to me that the adjudicator could readily have decided that, even if a ‘social group’, women, constituting as they do about half of humanity, cannot aptly be described as a ‘particular social group’. He might equally, on that basis and in my view correctly, have decided that Trinidadian women do not constitute a particular social group. Neither of those decisions require more than construing the statute according to the ordinary meaning of its words.
It is otherwise as to ‘Trinidadian women subject to wife abuse’. There is presently no judicial or other authority upon which the adjudicator was obliged to rely that would lead him to a concluded opinion whether as a matter of law, they are a particular social group. The exercise I have gone through demonstrates that to construe the statute with a view to that determination requires the weighing of credible evidence in the form of foreign jurisprudence and learned commentary. A question may be posed for the future: since, in this context, persecution must be feared by reason of membership in a particular social group, can fear of that persecution be the sole distinguishing factor that results in what is at most merely a social group becoming a particular social group.”
Two comments may be made. First, for my part, I see no reason why the fact that the class of women will constitute half the population, more or less, means that the class of women could not be a particular social group. If, for example, a state were to adopt a policy of imprisoning women because they were women, why would women not be able to claim refugee status? The word “particular” is not used in opposition to “general” so much as to emphasise the need that the social group must be capable of being defined with particularity. Secondly, the comments of Mahoney JA with regard to the class of “Trinidadian women subject to wife abuse” echo the ultimate decision of the High Court in Applicant A. Assuming that the sole distinguishing factor of the social group is the fear of persecution, Applicant A compels the conclusion that it is not a particular social group for the purposes of the Convention. In any case, Mayers would seem inconsistent with Ward.
The decision of the US Federal Court of Appeals in Sanchez-Trujillo exemplifies one of the three main lines of authority in the United States. It held that a class of young, urban, working-class males of military age who had maintained political neutrality was not a particular social group for the purposes of the Convention. It suggested that there was to be implied in the phrase “particular social group” the idea of a collection of people, closely affiliated with each other, who are actuated by some common impulse of interest. It said, however, that of central concern was:
“the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.”
The group which was suggested to exist was said not to be cohesive or homogeneous enough to exist.
While it can be accepted that those who associate together voluntarily can be a social group, it is hard to see that the element of voluntariness is critical to the existence of a social group. Sanchez-Trujillo was referred to by McHugh J in Applicant A as an example of a narrow interpretation of the phrase “particular social group”, and by Dawson J as not persuasive. Gummow J referred to it without comment and Kirby J (dissenting in Applicant A) said it should not be followed.
It may be noted that Professor Hathaway at 157-169 cites Sanchez-Trujillo with general approval, despite a suggestion in Islam to the contrary (Islam 161) at 642. The learned author at the page cited in Islam (161), while criticising Sanchez-Trujillo for emphasising the importance of “voluntary associational relationship”, notes that immediately thereafter there is a reference to a family as a social group, a relationship that is certainly not voluntary. In other words, Hathaway treats Sanchez-Trujillo as not requiring every social group to have a voluntary element. The criticisms of the decision take a different view.
Hathaway’s own formulation at 161 owes much to Ward. It is in the following terms:
“…includes within the notion of social group (1) groups defined by an innate, unalterable characteristic, (2) groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change; and (3) existing groups defined by volition, so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it. Excluded, therefore, are groups defined by a characteristic which is changeable or from which dissociation is possible, so long as neither option requires renunciation of basic human rights … a ‘particular social group’ must be definable by reference to a shared characteristic of its members which is fundamental to their identity.”
In contrast to Sanchez-Trujillo there is, in the United States jurisprudence, a second line of authority which is illustrated by the approach taken in Fatin v Immigration & Nationalization Service 12 F3d 1233 (3rd Cir. 1993). The applicant there had claimed to be subject to persecution by reason of her membership of a particular social group. The group was variously defined. One possibility was that the social group was “upper class Iranian women who supported the Shah of Iran and were thus progressives”. The applicant claimed that she would suffer persecution because, if she did not comply with the gender-specific laws of Iran, which included the wearing of a veil, she would be tortured or jailed. It should be noted that the role of the Court was a limited one in that it was required to give deference to the decision of the Immigration Board. The Board had taken the view in In Matter of Acosta 19 I & N Dec 211, 213 (BIA 1985) that the phrase “particular social group” referred to “a group of persons all of whom share a common, immutable characteristic”. Such characteristics could include sex, race, kinship or in some cases, past experiences such as former military service or land ownership. “Salvadorean taxi cooperative members” failed to qualify as a particular social group because, as the drivers could change jobs, the characteristics defining taxi drivers were not immutable.
Women were, so Fatin held, a social group sharing the common characteristic of their sex. The applicant, however, was not persecuted because she was a woman. Her claim was persecution because she was a member of a sub-group of women. The Federal Court of Appeals for the Third Circuit expressed the view that such a group might be a particular social group but there was no evidence that the applicant was a member of this tightly defined group. The other possible group was “Iranian women who found their country’s gender-specific laws offensive”. However if the group was defined in this way, the applicant still failed as the facts did not show that the consequences that would befall her as a member of that group would constitute persecution. She had two options as a member of that group, namely compliance or non-compliance. If she complied, there would not be persecution. If she did not there would be persecution. Implicit in the decision is the notion that the particular social group must be so defined that all members of it must be capable of being subjected to persecution. Since it was only a part of the group which would suffer persecution, namely that part which did not comply with the requirements that they wear the veil, any persecution she might suffer was not by reason of her membership of this group.
There have been two cases reported since Fatin was decided. Lwin v Immigration & Nationalization Service 144 F 3d 505 (7th Cir 1998) concerned the question whether parents of Burmese student dissidents were a particular social group. It was held that they could, although the applicant failed for other reasons. Manion J, who delivered the judgment of the Court, noted the struggle which the courts had to provide workable criteria for determining whether there existed a particular social group, that struggle being, in essence, the immutable characteristics test on the one hand, as adopted by the First and Third Circuits and exemplified in Fatin, and the test of “voluntary associational relationship”, as exemplified in Sanchez-Trujillo. The Court applied the voluntary associational relationship test. So too did the 7th Circuit in Sharif v Immigration & Nationalization Service 87 F 3d 932 (7th Cir 1996).
One difficulty with the immutable characteristics test is that there has been no attempt to define what it was that made a group cognisable. Perhaps that expression means no more than is implied in the metaphor “common thread” used in Ram in Australia.
The third line of authority in the United State, perhaps but a variant of the other tests, emphasises external perception as important in defining a particular social group. Gomex v Immigration & Nationalization Service 947 F 2d 660 (2d Cir. 1991) is an example of this line of authority. That case held that women who had been previously beaten and raped by Salvadorean guerillas were not a social group because they lacked a recognisable and discrete attribute that would enable their persecutors to distinguish them from other women. So, a particular social group is one which consists of individuals who possess some fundamental characteristic in common that distinguishes them in the eyes of either the persecutor or the outside world.
It is obvious that women, as such, could constitute a particular social group in Canada on the test in Ward and on at least two of the tests applied in the United States, although it would seem that the persecution suffered would only entitle the applicant to refugee status if that persecution arose as persecution generally suffered by women. Women the subject of domestic violence could constitute a social group in Canada, but subject to the problem that the group should not be defined circularly by reference to the claimed persecution. The class of women per se could be a particular social group on the common immutable characteristics test in the United States, but not, it would seem, on any of the other two tests applied in that country.
The position in the United Kingdom
The House of Lords in its recent decision, Islam v Secretary of State for the Home Department [1999] 2 AC 629 (the case is sometimes reported as ex parte Shah, a result of the fact that two cases with similar facts were heard and decided together, but I shall refer to it here as Islam, considered the question of the meaning of particular social group in a way relied upon by the applicant before us. Not surprisingly, we were urged to apply what was there said, particularly the dictum of Lord Hoffman at 653-4, to the facts of the present case. It is thus necessary to analyse the decision and determine whether it is consistent with the approach taken by the majority in Applicant A. If it is, and assuming that it is not relevantly distinguishable, we should, in applying an international convention adopt an interpretation consistent with that of other countries and follow it, although noting that it may not be consistent with the approaches taken in Canada and the United States.
The applicant in Islam (as I have noted earlier, there were two applicants, each claiming on the basis of similar facts – I shall refer only to the facts of one of them) claimed to suffer violence in her country of origin, Pakistan, after she had been falsely accused by her husband of adultery. She claimed to fear persecution by reason of her membership of a particular social group, that being women who had offended against social mores or against whom there were imputations of sexual misconduct. As the report of the argument notes (see at 633), the Minister argued, consistently with Applicant A, that a particular social group could not be defined by the existence of persecution. The House of Lords unanimously upheld the claim to be treated as a refugee, overruling the Court of Appeal which had found that there was no common uniting feature which could constitute a relevant social group.
Lord Steyn commenced his reasons by noting that domestic abuse and violence against women was prevalent in Pakistan, as in many countries, but that that itself did not give rise to a claim to be treated as a refugee. What distinguished the case before the House of Lords was that the discrimination against women was partly tolerated and partly sanctioned by the State. Further, in considering the meaning of the phrase “particular social group” it was relevant to note that the preamble showed that countering discrimination was a fundamental purpose of the Convention.
His Lordship then referred with approval to that part of the judgment of McHugh J in Applicant A, as held that the particular social group of which the Convention spoke had to be one which existed independently of the persecution itself. After reviewing the American decisions, including Sanchez-Trujillo, and noting that the decision in that case had adopted a rather restrictive interpretation of the phrase “particular social group” and was not supported by the preponderance of case law in that country, his Lordship turned to Applicant A. That case was, according to his Lordship, different because the one child policy was a law of general application where there was no obvious element of discrimination. That, said Lord Steyn “may be the true basis of the decision of the High Court”. I would interpolate here that there is nothing in the reasons of the majority in Applicant A to suggest that that was the basis of the decision. Chen, which was decided subsequently to Islam, does mention that the one child policy was a law of general application, but the reasons of the majority do not expressly suggest that this was the real reason for the decision in Applicant A and there is no comment at all on Islam. Applicant A itself was, in my view, decided upon the ground there was no basis other than persecution which defined the social group there claimed to exist. It is true that McHugh J did refer to the law as one of general application, as did the joint judgment in Chen. However, in my view, the joint judgment did not see the general nature of the law as the basis of the decision. That this is so appears from the following passage from Chen at 559:
“The question whether ‘black children’ can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A. That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China’s ‘one child policy’. In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind. to put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear.”
Returning to the judgment of Lord Steyn, it is sufficient to say that his Lordship was of the view that cohesiveness was not an indispensable requirement for the existence of a particular social group. In so doing, his Lordship disapproved the suggestion to this effect in Sanchez-Trujillo. His Lordship said, a limitation in the words “particular social group” but that was not cohesiveness. Homosexuals were capable of being a particular social group so that persecution of them could qualify a homosexual for refugee status. Yet as a class homosexuals could hardly be called cohesive.
Although the social group contended for was narrower, his Lordship was of the view that the relevant social group was women. It did not matter (and this is an important question) that not all women would be the subject of persecution. Some Pakistani women would avoid persecution because their situation was not such that they were labelled as adulterous, just as some homosexuals might avoid persecution because of their particular privileged circumstances. One may say that it is not really correct to say that Pakistani women “avoid persecution” because they are not labelled as adulterous. Rather they are not subject to the persecution unless they have been. In other words, his Lordship, by framing the matter in terms of some members of the group avoiding persecution, has without really acknowledging it expanded the group so that he is able to say that the social group is women and that it is women who are the subject of persecution.
Had it been necessary to consider a narrower class, his Lordship would have accepted that Pakistani women who had not accepted the social mores of their country (ie those who were labelled adulterous or perhaps suspected of being adulterous) could be a particular social group. Such a class was, in his Lordship’s opinion, similar to the class of left-handed persons discussed by McHugh J in Applicant A.
One further issue arose in the case; it arises in the present case and it is convenient to raise it at this stage while dealing with Islam. The words “by reason of” indicate causation. How should causation be looked at? Should a “but for” test of causation be applied? It was his Lordship’s view that it was immaterial whether a “but for” test of causation or a test of effective cause was used. It could not, in his Lordship’s opinion, be said that the fear of persecution arose because of the hostility of the husbands. Rather it arose because of the membership of the social group.
Lord Hoffman was likewise of the view that there existed a particular social group – women. There was widespread discrimination against women in Pakistan and the fundamental core of the Convention was persecution based on discrimination. Hence the phrase “particular social group” should be read as encompassing whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention. No element of cohesiveness, cooperation or interdependence was necessary to support the finding of a relevant social group. The applicant’s fear of persecution was made up of two elements. The first was personal, addressed against her as an individual, that is to say, the threat of violence from the husband and his associates. The second fear arose because the State would not assist them because they were women. His Lordship said at 653:
“It is … a fallacy to say that because not all members of the class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class.”
I would interpolate here that the fallacy may, perhaps, be accepted. But to state the fallacy is not to answer whether that fallacy has application on the facts of a particular case. It is of course true that a member of the Jewish faith in Nazi Germany would have had a well-founded fear of persecution because she or he is a member of a social group of those professing the Jewish religion. (Of course religion is a separate Convention ground, but that may for present purposes be put to one side.) The fact that not all members of that group were in fact the subject of persecution would say nothing against the claim. There could be all sorts of reasons why they were not, for example, because they hid their religion, they were protected by associates in the upper echelons of the Nazi hierarchy and so on. The point is, however, that all members of the class are potentially liable to discrimination. In the present case the circumstances are different. Not all women are at risk of persecution, because not all women have abusive and alcoholic husbands.
The crux of his Lordship’s reasons on the general issue before their Lordships is to be found in the following passage at 654:
“In the case of Mrs Islam, the legal and social conditions which according to the evidence existed in Pakistan and which left her unprotected against violence by men were discriminatory against women. For the purposes of the Convention, this discrimination was the critical element in the persecution. In my opinion, this means that she feared persecution because she was a woman. There was no need to construct a more restricted social group simply for the purpose of satisfying the causal connection which the Convention requires.”
In considering the issue of causation it was necessary to take a common sense approach. At the heart of the case was the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the State.
May I here again be permitted an interpolation, albeit that so to do rather interrupts the analysis of the decision. With respect, I agree completely with the view that the issue of causation be approached on a common sense basis. A “but for” test of causation would be too rigid an approach. Having said this, however, the application of a common sense approach may lead one in different directions. For my part, I think there is a difficulty in the present case in characterising the persecution suffered by the appellant as caused by anything other than the personal characteristics of the relationship in which the appellant found herself. I do not think that a common sense approach would lead to the conclusion that the situation the applicant found herself in, and the situation in which she might find herself were she repatriated to Pakistan, would warrant a finding that she was persecuted just because she was a woman. No doubt the fact that she was a woman had a part to play in the alleged persecution, both because it was the foundation of her marriage to an alcoholic and abusive husband and because of the fact that she was a married woman meant that the police offered her no assistance. But I do not think that it is correct to say in all the circumstances that her persecution was by reason of her membership of any particular social group, however it may be defined. But that is but another matter.
Having regard to the way the present case was argued before us it is convenient here to set out the dicta upon which senior counsel for the respondent relied. His Lordship said, while discussing the issue of causation at 653-4:
“Suppose oneself in Germany in 1935. There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question ‘Why was he attacked?’ would be ‘because a competitor wanted to drive him out of business.’ But another answer, and in my view the right answer in the context of the Convention, would be ‘he was attacked by a competitor who knew that he would receive no protection because he was a Jew’.”
The example is a powerful one, as one might expect from Lord Hoffmann. Few would have difficulty with the conclusion that the person attacked would be entitled to be considered as a refugee. However one must take care, with respect, not to be distracted by the abhorrence civilised people undoubtedly have of the persecution of the Jews in Nazi Germany from noting the implicit assumptions in the example. First, the question of social group does not arise – no question of coherence or common thread need arise where the persecution is on the grounds of religion as I would prefer to say, rather than race. Secondly, it is far from clear from the example that all Jews are not subject to persecution, whether or not it be the case that all Jews are actually persecuted. A governmental policy that would, for example, imprison Jews who did not wear yellow stars out of doors in an environment coloured as it was by Nazism, where the wearing of yellow stars out of doors led to those who did being humiliated, would in my view amount to a policy to persecute Jewish people by reason of their Jewishness. Thirdly, the postulated facts in the second example given by his Lordship include as a fact that the physical violence of the attack against the competitor would not happen unless the government pursued the policy of allowing those who wished to attack Jews with impunity. In other words the government has actively pursued a policy which would encourage attacks on Jews. So the example postulates a case where the government was complicit in the violence to which Jewish people (that is to say all Jewish people) were potentially subjected.
This second example of Lord Hoffmann is, with respect to the submission made before us, a long way from the facts of the present case. If the social class is taken to be women, then two circumstances would need to be found before an applicant could succeed to make out the Convention ground. The first is that all women are potentially subject to violence. It hardly makes sense to say that women can avoid being persecuted by not marrying into an abusive relationship, whatever may be the case with women whose husbands accuse them of adultery. All women in Pakistan are not potentially subject to the violence which can constitute persecution. This has only to be stated to be accepted. It is only women in an abusive relationship whose husbands are alcoholically or otherwise abusive (or women who are labelled as adulterous) who are potentially subject to the violence. Secondly, there would be a need for a finding of fact (it is not there at the moment, so the case would need to be remitted for it to be found) that the government was complicit in (or at the very least officially tolerated) violence to women in abusive relationships. The example given by Lord Hoffman is not an example of mere inaction, it is an example of direct government policy influencing, perhaps even encouraging the actual act of persecution.
Lord Hope agreed with both Lord Steyn and Lord Hoffmann. In separate comments his Lordship expressed approval with McHugh J in Applicant A that to define the social group by reference to the persecution would be circular. However, there was, in his Lordship’s view, a difference between defining the group by reference to persecution and defining it by reference to the discrimination which existed. Having regard to the laws of Pakistan, women are discriminated against. The reason why the appellant feared persecution was not just because she was a woman, it was because she was a woman in a society which discriminated against women.
Lord Hutton agreed also with Lord Steyn, but was of the view that the particular social group should be taken as the narrower group, women suspected of adultery, rather than the wider group of all women in Pakistan.
Lord Millett dissented. His Lordship was of the view that for a group to constitute a particular social group within the Convention it had to be a cognisable group sharing common characteristics which set its members apart from society at large and for which they are jointly condemned by their persecutors. In his Lordship’s view no cognisable group existed independent of the social conditions on which the persecution was founded. It would seem that it was equally as circular in his Lordship’s view to define the group by reference to discrimination (itself the source of the persecution) and the persecution itself.
The question that has to be resolved is whether Islam can stand with Applicant A. If it can, and leads to the conclusion that the appellant here must succeed, then for my part I would follow it. If it can not, then we are bound to follow Applicant A, unless it is distinguishable.
I have great difficulty in reconciling Islam with Applicant A. If the group is taken here as women as a whole, it is difficult with respect to see why the persecution feared arose by reason of the appellant being a woman. The causation difficulty is, in my opinion, not so readily dismissed as the majority of their Lordships appear to say. This is the problem which McHugh J drew attention to in Applicant A, when pointing out that to define the class too widely means that it will be more difficult to find that the persecution arises by reason of membership of that group. In one sense, in Applicant A one could easily define the social group as parents – for the law discriminated against parents because they were parents. There was no discrimination against any other group. But something more had to be satisfied so that the persecution feared arose by reason of membership of the social group of parents – that was the fact that the couple have more than one child. No one suggested in Applicant A that parents as such were a relevant social group, although there is no reason to suspect that parents could be a social group. But the problem was that not all parents were subjected to persecution, it was only a sub-group of parents, namely at least parents with one child, that was the subject of persecution. However, that sub-group of parents with one child was in fact expressly rejected.
To delineate on the facts of Islam the social group as the narrower group, that is to say, women whose husbands had (perhaps falsely) labelled them as adulterous is to define the group by reference to the persecution which was inflicted. The only thing in common these women had as a group was their persecution. There was no other common thread. I can, with respect, see no difference, at least in a case such as the present, between the circularity involved in defining the group by reference to persecution and the circularity involved in defining the group by reference to discrimination. For it was the discrimination which gave rise to the persecution.
The situation in the European Union
Ready access to decisions in Germany or France is not easy. In an article “Persecution due to Membership in a Particular Social Group: Jurisprudence in the Federal Republic of Germany” (1990) 4 Georgetown Immigration Law Journal 381, Fullerton discusses the German jurisprudence as at the date of the article. The learned author refers in particular to a judgment of the Administrative Court in Ansbach (Judgment of 4 January 1985, No AN 1269-XIL/79, Vergewaltungsgericht Ansbach [VGA]) where a claim based, inter alia, on persecution alleged to have been suffered by a woman who had married a man of another caste was rejected on the basis that the actions complained of were undertaken by private individuals. The court in that case noted that the police did not intervene, for reasons which related to laziness, poor training or corruption and that many police agreed with the conservative attitudes and did not discourage those who acted against the woman. The courts would only intervene where the criminal law was violated. The claim thus failed because it had not been shown that government inaction was the result of the applicant’s membership of a particular social group. There was a lack of government complicity in the persecution. The author notes that the Ansbach court ignored the principle that severe ill-treatment by private individuals could constitute persecution if the government either tolerated the activity or was unwilling to protect the victims.
The article notes that different tests have emerged to identify a particular social group. The Administrative Court in Wiesbaden (Judgment of 26 April 1983, No IV/1 E 6244/81) focused on two questions. First, whether the alleged group was actually perceived by the general population as a group, rather than an agglomeration of individuals. Second, was whether the group was viewed in strongly negative terms. By contrast, the Administrative Court of Hannover in its Judgment of 6 June 1984, No 1 OVGA 91/82 As, Verwaltungsgericht Hannover [VGH] suggested that for there to be a particular social group within the meaning of the Convention there needed to be both a certain degree of homogeneity and a degree of inner structure.
The Commentary of Hullman in Carlier, Vanheule and Galiano (eds) Who is a Refugee? A Comparative Case Law Study, 1997 at 284 suggests that women from Iran confronted with a fundamentalist society imposing repressive measures where extra-marital relations or illegitimate children are involved will not be entitled to refugee status in German. This seems, however, to be because the measures have been seen not to reach the threshold of political persecution.
Schank and Galiano writing of the situation in France in the same publication at 400 refer to claims made in that country by persons who claim “difficulties” with spouses or cohabitating partners as being rejected because the conduct claimed of is not committed by the public authorities and thus outside the Convention. However, the authors refer to a ruling by the Conseil d’Etat, the highest French administrative court in the Dankha case in 1983 that while the persecution claimed did not emanate directly from the authorities it could receive recognition in France where the facts were such that the persecution was tolerated or encouraged by the public authorities.
Single Judge decisions in Australia after Applicant A
In the course of argument we were referred to decisions of single judges of the Court in Basa v Minister for Immigration and Multicultural Affairs [1998] FCA 830 ( Sackville J), Minister for Immigration and Multicultural Affairs v Ndeje [1999] FCA 783 (Weinberg J) and Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641.
In Basa, the applicant, a national of the Philippines, claimed to fear violence from her former partner as a member of a social group comprising women in the Philippines at risk of domestic violence. The Tribunal had rejected her claim on the basis that Filipino women did not constitute a social group. However the Tribunal also rejected the claim on two other bases, namely that she feared harm inflicted by her partner and that there was no real chance that, if she told the police in the Philippines of the full extent of her fears, they would not protect her. Sackville J held that the Tribunal had not made a reviewable error. His Honour commented that the finding that the applicant did not fear harm by reason of her membership of a social group was inevitable. In his Honour’s view the harm she feared came from the circumstances of her marital relationship. The case may be said to do no more than turn on its particular facts.
In Ndeje the applicant, a national of Tanzania, claimed to fear for her life because her husband would take revenge upon her for having left him with the children. She relied as well upon the domestic violence to which she would be subjected. The social group said to exist was “married women in Tanzania”. The applicant was successful before the Tribunal, but the Tribunal’s decision was reversed by Weinberg J. His Honour did so because he was of the view that, while generally State action would be necessary to a finding of persecution, persecution on a Convention ground could still exist where the harm feared stemmed from individual and not State action but only where the State was complicit in the violence which was feared. Mere unwillingness or inability of the State to do anything to prevent the violence was not enough where the individual violence feared was not motivated for a Convention reason. On the facts of the case there was no evidence that the State inaction was motivated for a Convention reason. Complicity could only arise where the individual act of persecution itself was motivated by a Convention reason.
The second matter discussed by his Honour was whether there was a relevant particular social group. This the Tribunal and his Honour identified as “married women in Tanzania”. His Honour was of the view that it was open to the Tribunal to find that such a group existed and that in doing so it had not identified the group by reference to the persecution.
Clearly this decision must be wrong if the present respondent is to succeed. It is suggested that it is because it is inconsistent with Chen. It is obviously inconsistent with Islam notwithstanding that that case is referred to throughout the judgment. It is only inconsistent with Chen if that case stands for the proposition that it is unnecessary in proving persecution for reasons of membership of a particular social group to prove some motivation. However, in my view, Chen does not stand for so wide a proposition. In Chen, the High Court certainly held that it was unnecessary to show enmity or malignity against a member of the group to come within the definition. But that does not mean that there is no need to prove a motivation for the persecution, for there is the need to show that the persecution is “for reasons of” membership of the particular social group. When the joint judgment suggests at 560 that it will be necessary to look at the “particular reason assigned for that conduct”, ie the persecution, in my view their Honours were suggesting that that was the yardstick of motivation, not enmity or malignity. If it is shown that there is discrimination manifested in persecution against the social group and the discrimination arises from a relevant attribute in the group it will almost always (perhaps always) have been shown that there is persecution by reason of membership of a social group. There may be one qualification, which is hardly likely to arise in practice. Let it be assumed that there is persecution of persons who are members of a social group and it is demonstrated that the persecution was not motivated against the group because of some attribute of the group, but it was just accidental that members of the group were discriminated against. In such a case it is hard to see how it could be held that the persecution arose “by reason of” membership of the social group. That situation is so unlikely as to need no further comment.
It follows in my view that the judgment of Weinberg J is, with respect, not inconsistent with Chen.
The third of these decisions raises a matter which is peripheral to the present appeal, and the facts in question were wholly different. The appeal concerned a claim of fear of persecution where the persecution complained of was extortion. The claim was made on the basis of membership of a particular family group, namely the family to which the applicant belonged. The Tribunal had found against the applicant and its decision was set aside at first instance by Hely J. The full Court affirmed the judgment appealed against. It held that a family could be a particular social group and it is hard to see how there could be much controversy about that. It is the second matter discussed in the judgment which is more important. The Tribunal had found that the persecution was motivated by self-interest on the part of criminals to recover money they believed was due to them. The full Court expressed the view that there could in a particular case be two motivations for a particular act of persecution. So the existence of a criminal motive would not exclude the existence of a Convention motivation.
I have no problem in accepting the principle that a finding of a non Convention reason for persecution does not necessarily preclude a finding of a Convention reason. I do not, however, think that principle applicable here.
In summary, I am of the view that the present case does differ from Islam. On the narrower view the social group is “women with alcoholically abusive husbands”; on the wider view it is women as such. The persecution that is feared is being beaten. It may be possible to say that it is being beaten in circumstances where State assistance is ineffective. But the beating which is feared does not, as such, arise because the victim is a woman; it arises because the victim has aroused the ire of the drunken husband. While it may be accepted that homosexual men constitute a social group and that not all fear persecution, because some may avoid it by not disclosing their sexuality, or because they are in some privileged position, all homosexuals are subject to the potential of persecution. But not all women are subject to the potential of being beaten. Something more is involved. That something more is the association through marriage with an abusive and alcoholic husband. Further, it is not suggested that the State is complicit in the abuse that is suffered by a woman married to an alcoholically abusive husband. By contrast, in Islam Pakistani laws imposed severe penalties on adulterous women.
Conclusions
It is clear that the present is a difficult and important case. The issues are far from easy. The authorities, both local and international, provide no clear guidance. This is particularly difficult where the subject matter in issue is the interpretation of an international treaty of general application. So far as is possible each state should adopt an interpretation consistent with the interpretation adopted by other states. This Court is bound to follow the views of the High Court. Although we are not bound to follow decisions of the House of Lords, we would do so, that court being the highest court of the United Kingdom, unless its views conflict with those expressed by the High Court or are otherwise out of line with other international authorities which are thought to be correct. With respect to those who think otherwise, I do not think that the views of the House of Lords are consonant with the views of the High Court. Nor are the views of the House of Lords consistent with American or for that matter Canadian authority. Further I am not prepared to seek to explain decisions of the High Court by reference to matters which the decisions themselves do not raise.
In my view the law as found by the High Court and, so far as is not inconsistent with the High Court, as accepted by the courts of other common law jurisdictions can be shortly summarised as follows:
1.To fall within the Convention, it is not necessary that the persecution be initiated by the State. All that is necessary is that the persecution be for a Convention reason and that the State be unable or unwilling to stop it. Where the harm feared is not initiated by the State and is not initiated for a Convention reason, there may still be persecution within the meaning of the Convention where the State is complicit in the harm and is complicit for a Convention reason or where the State is prepared to tolerate the harm and does so for a Convention reason.
2.The persecution complained of must involve some serious detriment, disadvantage or harm involving an element of attitude or motivation expressed in the requirement that the persecution arise by reason of the Convention ground. It is not so much the nature of the conduct but the discriminatory nature of it which marks out conduct as persecutory.
3.Persecution involves action. Mere inactivity is not of itself persecution. Official tolerance by the State of persecution, while apparently in conflict with this proposition is, in my view not, for it involves conscious decision-making. It is unnecessary to consider in this case the situation where the State is unable to prevent the persecution. That is not suggested.
4.A particular social group exists where there is a group with some common characteristic (ie a common thread must bind the group). While that common characteristic may be found in voluntary association by the members there is no need for a requirement of voluntariness to exist.
5.The persecution complained of must arise by reason of membership of the particular social group. However, there need not be a motive of enmity or malignity towards the members of the group on the part of the persecutor. While not all members of the group need be shown to be actually persecuted, all members of the group have to be subject to the potential of persecution. If one characteristic distinguishes between those members of a social group who are subject to persecution and those who are not, then it is difficult to say that persecution arises by virtue of membership of the wider social group. Rather the persecution is by reason of membership of a sub-group which may satisfy the test of particular social group.
6.While in some cases the persecution may be motivated by more than one reason it is necessary, for the persecution to found a claim for refugee status, that it be motivated by reason of the membership of the social group. That will be a matter of fact and causation should be approached on a common sense basis.
The question that remains, however, is whether Islam should be treated as authority for the proposition that persecution may fall within the Convention where the persecution consists of harm which is not Convention related and the State is not complicit in that harm, nor tolerates it, but is indifferent or inactive in dealing with it. In my view it should not be so treated. One reason for not so doing is to be found in the comment of Lord Hoffman at 648 which explains why there is a distinction between those subject to domestic violence in the United Kingdom and women in Pakistan such as Mrs Islam. As Lord Hoffman notes, domestic violence exists in many countries including the United Kingdom. I would add, unfortunately, that this includes Australia. The reason why persons the subject of domestic violence in the United Kingdom could not be considered refugees was, in his Lordship’s view, because they had access to the courts. It may be interpolated here that in the United Kingdom, as in Australia, access to the courts is expensive and for that reason may not be a practical alternative. Be that as it may, on the evidence in Islam, access to the courts was unavailable to Mrs Islam. It would, according to his Lordship, have been useless in that country for Mrs Islam to apply to the courts (or the police). Indeed, the evidence went beyond that as the decision of Lord Steyn notes at 635-6. Pakistani laws at the relevant time explicitly discriminated against women found to be adulterous. Women were liable to be punished if guilty of extra-marital intercourse. Thus the fact that Mrs Islam had been falsely labelled by her husband as adulterous led to the result that she would have been liable in the courts to serious punishment (and in proceedings in which she was not able to give evidence). On these facts, it is not too difficult to see the social group as adulterous women, or women denounced as adulterous and the persecution suffered as arising by reasons of the fact that those accused of adultery were members of that group.
The facts in the present case are different. There is no finding of fact, or for that matter any suggestion that the protection of the courts in Pakistan was unavailable to Mrs Khawar, had such protection been sought, any more than in Australia. The evidence was merely that complaint to the police led to indifference or inaction by the particular police officer/s to whom the complaints were directed. It was not suggested that Mrs Khawar had sought to take action in the courts against her husband. There was no law of Pakistan suggested to be applicable here which discriminated against women who had been battered or who had been the subject of domestic violence, similar to the law in Pakistan which punished adulterous women. The unwillingness of the particular policemen to whom the complaint was addressed to intervene was not, as I have said, itself persecution, absent a factual finding that the laws of the State provided no redress, or that the State, was complicit in or actually tolerated such domestic violence.
On the question of causation, Lord Hope of Craighead agreed with Lords Steyn and Hoffmann while Lord Hutton agreed with Lord Steyn. Lord Millett dissented.
Accordingly, while not essaying a “definition” of the words “for reasons of” in the definition, the majority accepted that a “realistic” approach to causation would treat those words as satisfied by a pattern of violence for which the immediate motivation was personal, combined with denial of state protection.
With respect, I think that their Lordships’ understanding of the kind of causal link called for by the definition is both “realistic” and in conformity with the purposes of the Convention. The definition does not, in terms, require identification of the persecutor or persecutors. Once it is accepted, as it has been (see, for example, Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 (FCA/FC)), that the definition may be met even though a single persecutor has more than one reason for persecuting, there is no difficulty, I suggest, in accepting that persecution may consist of the effect of the conduct of two or more persons, only one of whom may be moved by a Convention reason.
In the present case, there are possibilities which, in my view, would have satisfied the Convention definition but which the RRT did not explore because it put the state’s lack of protection to one side as irrelevant in favour of only the immediate motivation of the husband:
· That Ms Khawar feared violence from her husband and his brother for reason of exclusively personal, family considerations followed by the objective fact of lack of state protection for reason of her membership of a particular social group;
· That Ms Khawar feared violence from her husband and his brother for reason of personal, family considerations and the husband’s and brother’s knowledge that the state would not protect her from them for reason of her membership of a particular social group (“what did you think the police could do to us?”).
According to this alternative identification of the persecutory conduct also, her Honour was right to set aside the RRT’s decision and to remit the matter to the RRT for consideration according to law.
The “attitude” or “motivation” of the persecutor since Chen
In a much cited passage in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (FC), Burchett J stated as follows (at 568):
“In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind. That concept flows through the separate elements of the definition. The well-founded fear of which it speaks is a fear of ‘being persecuted’. Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word ‘persecuted’, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is ‘membership of a particular social group’. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’. The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ – the membership of the social group must provide the reason. There is thus a common thread which links the expressions ‘persecuted’, ‘for reasons of’, and ‘membership of a particular social group’. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.” (my emphasis)
In Chen, Gleeson CJ, Gaudron, Gummow and Hayne JJ quoted (at [34]), with apparent approval, the following statement in the judgment of the primary Judge, French J:
“The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted. But although the words ‘enmity’ and ‘malignity’ appear in the dictionary definitions of persecution and in some of the passages in the judgments, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group. Motivation connecting persecution to the relevant attribute is sufficient. Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects. There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept. The attribution of subjectively flavoured states such as ‘enmity’ and ‘malignity’ to governments and institutions risks a fictitious personification of the abstract and the impersonal.” (my emphasis)
As noted earlier, in my opinion both the joint judgment and that of Kirby J in Chen show that it is an error of law to insist upon the presence of any particular adverse attitude, emotion or state of mind on the part of the persecutor. But clearly the motivation for the persecutory conduct must be something perceived about the particular social group. If it is necessary to say so, I would hold that a state perception of a particular social group as “inferior”, “less deserving” or “second class” by reference to the rest of society, and, in particular, a view of members of the group as not possessing the same human rights as the rest of society or, if possessing them, as not entitled to have them enforced and protected to the same extent as the rest of society, would constitute a motivation that would be entirely consonant with the Convention’s definition and preamble. In the present case, there was evidence before the RRT on which it might have found that “women in Pakistan” or “married women in Pakistan” are so regarded and also that such a view of Ms Khawar formed part of the attitude of her husband and his family and the police, that caused them to act towards her as they did.
“The principle of surrogacy”: surrogate protection
In the recent case, Horvath v Secretary of State for the Home Department, unreported, 6 July 2000, the House of Lords was required again to consider the issue of lack of state protection in a case of persecution by a non‑state agent. The appellant was a citizen of Slovakia. He lived there with his wife and other members of his family. They were Roma (gypsies) and were persecuted by “skinheads”. He alleged that the state, through its police service, had failed to protect him from them.
The Immigration Appeal Tribunal concluded that while the appellant had a well founded fear of violence by skinheads, this did not amount to “persecution” because the appellant had not shown that he was unable, or through fear of persecution, unwilling, to avail himself of the protection of the state. The Court of Appeal dismissed his appeal from the Tribunal’s determination.
Their Lordships’ judgment on the appellant’s further appeal to the House of Lords was delivered by Lord Hope of Craighead. His Lordship found it necessary to address only one question which the parties had identified as calling for determination. That question was:
“[D]oes 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 stated that the Convention purpose which was of paramount importance for solution of the problem raised was that found in “the principle of surrogacy”:
“The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention in his own country to turn for protection to the international community.”
His Lordship referred to suggestions by Professor J C Hathaway in The Law of Refugee Status (Butterworths 1991) that persecution may be defined as “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection” (at 104‑105) and that
“Persecution is most appropriately defined as the sustained of systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community.”
His Lordship thought that the lack of state protection had a part to play in the application of both limbs of the definition: the first “well-founded fear …” limb, and the second “unable or … unwilling” limb. Accordingly, he stated:
“… in the case of an allegation of persecution by non‑state agents the failure of the state to provide the protection is nevertheless an essential element.”
Horvath differed from Islam and the present case in that in Horvath the harassment was Convention based (being directed against the Roma) whereas in Islam and the present case the violence was not directed against all Pakistani women or all Pakistani married women but only against the particular wife. It is noteworthy that Islam was not referred to in Horvath. Horvath is, nonetheless, of relevance for its emphasis on surrogate protection as providing the principle that unifies the various elements of the definition of “refugee”. Their Lordships’ analysis is to the effect that in a case of persecution by non-state agents, it is not only permissible, but necessary, to find a well-founded fear of lack of state protection in order to find even the first limb satisfied. This view is consistent with both approaches to the present case that I outlined earlier.
Other matters
Senior counsel for Ms Khawar correctly observes that the difference between the two approaches outlined earlier makes no difference to the result of the appeal in the present case: the RRT did not consider the case according to either approach. In another case, the difference in approach might yield a different result. In argument, the hypothetical illustration was offered of a natural disaster, such as flood, fire, famine or volcanic eruption, which devastates a community, leaving its members facing starvation, disease and death. If the state withheld all aid from those members, and only from those members, of the society who belonged to a particular race, adhered to a particular religion, were of a particular nationality, held certain political opinions or were members of a particular social group, persecution of those persons for a Convention reason would surely be established. Yet in such a case there would not be positive action by anyone, even a non-state agent, discriminating against those persons.
The hypothetical example reinforces my views
·that the first of the two approaches that I outlined earlier is the preferable one; and
·that it is inappropriate to insist that some positive conduct be present before the Convention definition can be brought into play.
Senior counsel for the Minister submitted that decisions of single Judges of this Court were contrary to the views expressed by the primary Judge. He referred to Basa v Minister for Immigration and Multicultural Affairs [1998] FCA 830 (Sackville J) and Minister for Immigration and Multicultural Affairs v Ndeje [1999] FCA 783 (Weinberg J).
Basa was unlike the present case. A Filipino woman feared violence from a former boyfriend. The RRT was not satisfied that she feared him “by reason of her membership of a particular social group, namely, Filipino women” and found that her fear was of infliction of harm arising from the previous relationship. Most importantly, the RRT found that “there was no real chance that if the applicant told the police the full extent of her fears, the authorities would not protect her.” Sackville J held that the material before the RRT was sufficient to support both findings. His Honour remarked:
“The applicant did not face persecution because she was a Filipino woman, but because of the unfortunate circumstances of her relationship with Mr S and his apparent propensity for violence.”
Earlier, his Honour had stated:
“The harm feared must be, at least in part, by reason of membership of that particular social group. Furthermore, in order to constitute persecution, the harm must emanate from the authorities in the country or, alternatively, the government must fail or be unable to protect the applicant from persecution.” (my emphasis)
I do not think that anything said by Sackville J in Basa is inconsistent with the views I have expressed. It must be recalled that Ms Khawar’s claim, not yet determined by the RRT, is that, to adopt Lord Hoffman’s words in Islam (at 655), there is
“… institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the state.”
Ndeje concerned a married Tanzanian woman who claimed she had been the victim of serious and sustained violence at the hands of her husband. She claimed that in Tanzania, marital violence inflicted by husbands upon their wives was considered normal and that there was no point in complaining to the authorities because they would take no action. She claimed that the authorities would support her husband in whatever course he took and that as he was a professional man and a former senior bureaucrat, he would be able to pay bribes to the police and the judiciary. She claimed that if she sought to leave him, she would be ostracised, unable to find employment and dishonoured by her own family for having failed to comply with Tanzanian custom. Moreover, she said that if she were required to return to Tanzania, her husband would take revenge upon her for having left him and that he had threatened to kill her once they were back in Tanzania.
The RRT thought that the applicant was a member of a particular social group, namely married women in Tanzania, and that such women were persecuted by being denied by the state the fundamental rights and freedoms enjoyed by others in Tanzania, and by the complicity of the state in the infliction of violence by their husbands. In a careful judgment, Weinberg J dealt separately with the attribution of responsibility to Tanzania for Convention-related persecution and the finding that Tanzania was complicit in the husband’s persecution. His Honour stated as follows:
“The attribution of responsibility to Tanzania for Convention related persecution
…………………………………………………………………………………………….46 I am unable to accept the respondent’s submission that the conclusion reached by the RRT that the State was the source of the Convention related persecution was properly open to it. The respondent’s case before the RRT was that her husband, and not the State, was the source of her ‘well-founded fear of being persecuted’. The RRT did not make that finding.
47 There is no authority of which I am aware which suggests that a State may be found to have engaged in persecution for a Convention related reason merely because it is unwilling, or unable, to protect its citizens from acts of violence which are not themselves, in any way, Convention related. Certainly McHugh J did not go so far as to suggest this in the passage cited (at 258) above where his Honour spoke of inaction by the State in the face of ‘persecution by private individuals or groups’. In context, his Honour there meant persecution for a Convention related reason.
48 The very concept of ‘persecution’, viz ‘the action of persecuting with enmity or malignity’ – The Oxford English Dictionary; ‘to pursue with enmity and injury’ ‘to harass, worry, importune’ – Concise Oxford Dictionary, suggests something actively done by a persecutor, and not mere inaction on the part of another who is in a position to prevent it.
49 Notwithstanding the suggestion in these and other definitions of the term ‘persecution’ that only positive acts are embraced within that term, inaction in the face of Convention related violence may amount to Convention related persecution if that inaction is motivated by factors which are Convention related – Applicant A (supra) at 258 per McHugh J. Failure by the State to prevent Convention related violence, albeit violence which emanates from a non-State source, such as a private individual or group, will be sufficient, in such circumstances, to give rise to a successful claim to refugee status. The State may properly be viewed as complicit in that Convention related violence.
50 That is not, however, the situation in the present case. Tanzania itself was found by the RRT to be the source of the respondent’s ‘well-founded fear of being persecuted’. Absent a finding that the respondent’s husband was motivated in his violence towards her by one or more of the matters set out in Art 1A(2) of the Convention, there was no evidence or other material before the RRT capable of giving rise to that conclusion.
51 Having found that the applicant has made good this first ground of review it is not strictly necessary that I deal with the remaining grounds in support of the application. As this matter is to be remitted to the RRT for reconsideration, however, I have thought it appropriate to touch briefly upon these remaining grounds as well.
The complicity finding
52 I accept the applicant’s contention that it was not open to the RRT to find that the complicity of the State in the non-Convention related violence of the respondent’s husband was a basis upon which it could be satisfied that she would face Convention related persecution if required to return to Tanzania.
53 ‘Complicity’ by the State in the acts of another cannot, in my opinion, amount to Convention related persecution unless those acts of that other have the character of persecution which is Convention related.
54 Complicity is a form of accessorial liability. In the complicity situation there is only one offence, though there will be two or more offenders. If the principal offender has not committed the relevant offence, the accessory cannot, in ordinary circumstances, be convicted of complicity in that offence – Osland v The Queen (1998) 159 ALR 170; Surujpaul v The Queen [1958] 1 WLR 1050; Walsh v Sainsbury (1925) 36 CLR 464 at 477; Mallan v Lee (1949) 80 CLR 198 at 205, 210; see generally P Gillies, The Law of Criminal Complicity (1980), LBC at 138-148.” (my emphasis)
Of course, Ndeje preceded Chen. Chen shows that while enmity or malignity of a persecutor directed against the members of a particular social group on account of their unifying characteristic can be relevant to satisfaction of the Convention definition, it is not necessary for that purpose. With respect, I do not think that certain aspects of his Honour’s approach in Ndeje can now stand with Chen.
Reference may be made to Fatin v Immigration and Naturalisation Service 12 F 3d 1233 (3rd Cir, 1993), an opinion of the United States Court of Appeals, Third Circuit. The petitioner, a native and citizen of Iran, had entered the United States at the age of eighteen years as a non-immigrant student. She attended high school and college. In May 1984, apparently while still attending college, she applied for political asylum. She said she did not wish to return to Iran because she did not wish to assume what she perceived to be the subordinate role of women in Iran. She referred to requirements to practise the Muslim religion, the wearing of the chador or traditional veil, and the unequal treatment of the sexes.
The Court noted that the particular social group on which the petitioner relied was not “Iranian women” but “Iranian women who refuse to conform to the government’s gender-specific laws and social norms.” The Court held that the petitioner’s difficulty was that her testimony had not established that her beliefs were “so fundamental to [her] identity or conscience that [they] ought not be required to be changed”: Matter of Acosta 19 I & N Dec 211 at 234. Rather, the Court said that the most her testimony showed was that she would find the wearing of the veil objectionable and would seek to avoid compliance if possible.
I find nothing in Fatin inconsistent with the views I have expressed. Unlike Ms Fatin, Ms Khawar has already suffered persecution and the circumstances that gave rise to it (her being a female and married to her husband) cannot be changed by her in order to escape it.
Finally, it seems right to say that the fact that the police have failed to protect a woman from her husband’s violence will not necessarily provide the bridge between the state and privately motivated harassment. Firstly, the failure may be atypical. Secondly, it may be due to the attitude or ineptitude of a particular police officer. Thirdly, it may be due to systemic inefficiency. Fourthly, the police may be reluctant, for good or bad reason, to become involved in a particular domestic dispute. Unfortunate as the woman’s position would be, these various explanations (and perhaps others) would serve to displace any suggestion that she was a refugee as defined. Something more is required. In my view, that “something more” would be satisfied at least by a sustained or systemic absence of state protection for members of a particular social group attributable to a perception of them by the state as not deserving equal protection under the law with other members of the society, whatever the origin or explanation of that discriminatory perception might be.
Conclusion
In my view, the appeal should be dismissed with costs.
I certify that the preceding seventy- eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 23 August 2000
Counsel for the Appellant: Mr R Tracey QC and Mr J Smith Solicitor for the Appellant: The Australian Government Solicitor Counsel for the Respondents: Mr J Basten QC Solicitor for the Respondents: Coelho & Coelho Date of Hearing: 29 May 2000 Date of Judgment: 23 August 2000
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