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UDARA JAYASINGHE[*]
Global trends demonstrate that the number of asylum seekers and refugees increases every year. At the start of 2006, the number of people of concern to the United Nations High Commissioner for Refugees (UNHCR) had risen to 19.2 million. Of this, 51 per cent were women and girls. Providing a response to the forced movement of asylum seekers requires international cooperation and commitment. Arguably, in this time of ‘asylum fatigue’ those at the margins of refugee protection, such as female asylum seekers, risk being excluded from international protection.
The end of the cold war period saw new types of refugee flows. These included female asylum seekers fleeing persecution specifically directed at them based on their sex or gender. In many societies women are regarded as the private property of their fathers and then their husbands. As a result, women face differential treatment within the legal system and are often vulnerable to sexual violence. For female asylum seekers, gender inequality is a primary cause for their forced migration.
The new wave of refugees from the Middle East, Africa and Asia has seen many women claiming persecution on the basis of social and religious mores or arising from domestic violence. These forms of persecution are difficult to reconcile with the post World War II perception of refugees seeking asylum for ideological reasons. Fortunately, these events have coincided with developments in international human rights law relating to women and the recognition of sexual violence as a crime against humanity under international criminal law, thus heightening the importance of sexual and gender based persecution in the asylum context.
Australia is a signatory to the United Nations Convention Relating to the Status of Refugees 1951 (‘Refugees Convention’) and its Optional Protocol of 1967 as well as International Human Rights treaties. Although the Refugees Convention guarantees equal rights for both men and women, as this article demonstrates, the perceived gender neutrality of international refugee protection has proven to be a significant obstacle for the protection of female asylum seekers. The nature and varying forms of sexual and gender based persecution are difficult to fit within the refugee definition, especially in the absence of a separate Convention ground of ‘gender’. Yet, despite the restrictive operation of the Refugees Convention to individual cases of sexual and gender based persecution, Australian courts have expanded the protection available for female asylum seekers through flexible judicial interpretations. By requiring a consideration of their claims in the social and cultural context of the countries from which female asylum seekers have fled, Australian Courts have accorded claims of sexual and gender based persecution with broader recognition within the ‘membership of particular social group’ ground of the Refugees Convention.
This article begins with a discussion of the particular nature and the different forms of sexual and gender based violence suffered by female asylum seekers and the international protection available to them. The experiences of female asylum seekers and the extent to which they are reflected or constructed under the Refugees Convention are then examined. Finally, this article discusses the existing Australian jurisprudence and the extent to which Australian refugee jurisprudence has developed to include claims of sexual and gender based persecution. Principally, this article discusses the interpretation of the definition of a refugee as defined under the Refugees Convention by Australian courts and the extent to which claims relating to sexual and gender based persecution have been considered as falling within that definition.
An understanding of the nature and the various forms of sexual and gender based persecution must be evaluated to appreciate the complexities facing the international or domestic refugee determination processes.
The UNHCR has grouped sexual and gender based violence into five broad categories, including sexual violence, physical violence, emotional and psychological violence, harmful traditional practices and socio-economic violence.[1]According to the UNHCR, sexual violence constitutes:
… rape (including marital rape), child sexual abuse, forced sodomy, anal rape, sexual abuse, sexual exploitation (including trafficking, forced undressing, coerced marriage, forced child bearing, engagement in pornography or prostitution, sexual extortion for the granting of goods and services), sexual harassment and sexual violence as a weapon of war and torture.
UNHCR has identified physical violence to include beating, punching, kicking, biting, burning, trafficking and slavery. Emotional and psychological violence includes abuse or humiliation (requiring a victim to engage in humiliating acts) and confinement, harmful traditional practices such as female circumcision, early marriages, forced marriages, honour killings and maimings, infanticide and a denial of education for women and girls. Finally, UNHCR classifies socio-economic violence to include discrimination and a denial of opportunities, ostracism based on sexual orientation and obstructive legislative practice that restricts women’s rights.
Refugee jurisprudence has for some time been criticised for its overemphasis on the protection of civil and political rights at the expense of social and economic rights. As civil and political rights concern violence committed in the public sphere, sexual and gender based persecution of women (which operates within a social and cultural context and is therefore private) has been considered as falling outside the realm of international human rights protection.[2]
The root causes of sexual and gender based persecution and the social context within which it originates are important considerations in evaluating whether female victims fall within the scope of the Refugees Convention. Sexual and gender based persecution is generally inflicted on women and girls because of their sex and gender and in most cases it involves ‘private’ violence, where the perpetrator is a non-state actor.
Under international law, although a woman has a right to leave her home, there is no right for her to enter another state. Article 14 of the Universal Declaration of Human Rights 1948 (UDHR) provides for an individual to ‘seek and to enjoy in other countries asylum from persecution.’ However, this provision is not mirrored in other international human rights treaties and is omitted in the Refugees Convention. Hence, the primary obstacle for asylum seekers is that international law fails to provide a right to seek asylum.
As recognised in Minister for Immigration and Multicultural Affairs v Haji Ibrahim:[3]
… according to customary international law, the right of asylum is a right of States, not of the individual … The proposition that every State has competence to regulate the admission of aliens at will was applied in Australian municipal law from the earliest days of the Court … However, from that proposition, two principles of customary international law have followed. One is that a State is free to admit anyone it chooses to admit … even at the risk of inviting the displeasure of another State; and the other is that, because no State is entitled to exercise corporeal control over its nationals on the territory of another State, such individuals are safe from further persecution unless the asylum State is prepared to surrender them.
Although customary international law dictates that the right of asylum is a right of a state (and not of individuals), a state party to the Refugees Convention has a positive ‘non refoulement’ obligation to an asylum seeker arriving within the state’s territorial jurisdiction. Accordingly, a woman arriving within Australia’s territorial waters cannot be ‘refouled’ if her claim of sexual and gender based persecution falls within the refugee definition.
The refugee definition has been incorporated into Australia’s Migration Act 1958 (Cth).[4] As the Australian refugee determination framework incorporates the refugee definition of the Refugees Convention, any gaps in international refugee protection will continue to impact on domestic law and limit the protection available for female asylum seekers.
Although the Refugees Convention and its definition of a refugee protects both men and women, the international refugee protection regime has procedural and structural limitations in relation to claims of sexual and gender based persecution. An analysis of the level of protection available for female asylum seekers under the Refugees Convention must consider the relationship between gender, sex and the elements of the refugee definition. To meet the refugee definition, an applicant must satisfy the causal nexus of the persecution being inflicted as a result of one of the five Convention grounds.
Sexual and gender based violence can give rise to harm sufficiently serious to constitute ‘persecution’ (especially in light of the broader interpretation provided under international human rights law). However, establishing that the persecution suffered results from one of the Convention grounds becomes problematic for sexual and gender based persecution claims in some circumstances. This is primarily because the refugee definition does not include ‘gender’ as a separate Convention ground and therefore sexual and gender based persecution claims must be fitted into the five enumerated Convention grounds.
Much of the violence perpetrated against women is committed by non-state agents such as husbands, boyfriends, fathers, in-laws and in the case of female circumcision, women in the local community. A fundamental principle of refugee protection is that of ‘surrogate protection’,[5] whereby international protection is provided when the applicant’s state of nationality has failed in the duties it owes to its population. Prior to the High Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Khawar,[6] the situation under Australian refugee law was that persecution within the domestic sphere or for cultural and religious reasons by non-state parties was inconsistent with the intention and protection provided by the Refugees Convention.[7]
However, as established in Khawar and more recently, Minister for Immigration and Multicultural and Indigenous Affairs v S152/2003,[8] the refugee definition does not require a state to be the agent of harm and persecution by ‘private’ or non-state agents can equally fall within the refugee definition. Under Australian jurisprudence, harm perpetrated by non-state agents may amount to persecution if the state condones or tolerates it, refuses or is unable to offer adequate protection.
In Khawar, it was accepted that claims of domestic violence suffered by a Pakistani woman at the hands of an abusive husband amounted to persecution. It was considered and accepted that in Australia and also in other jurisdictions, that the serious harm involved in persecution may be inflicted by persons who are not agents of the government of the country of their nationality. The decision in Khawar is consistent with the progress made internationally to address sexual and gender based persecution, in particular in light of the advances made by UNHCR to recognise persecution committed by non-state actors as meeting the requirements of the refugee definition.
Khawar was subsequently applied in the Australian case of SBBK v Minister for Immigration and Multicultural and Indigenous Affairs,[9] in which it was held that women or divorced women in Iran constituted a particular social group. This case involved a woman claimant and her son, who sought asylum on the basis of her husband perpetrating violence against them and the Iranian state’s failure to provide them with adequate protection.
By recognising persecution by non-state parties as satisfying the requirements of the Refugees Convention, Australian jurisprudence offers much broader protection for sexual and gender based persecution claims in comparison to states such as Germany, France and Switzerland, which have accepted the ‘accountability theory’.[10] Under the ‘accountability theory’, a signatory state is only required to extend protection when the government is responsible for the persecution suffered by a person for a Convention reason, either by inflicting or intentionally tolerating the persecution.[11] As such, the ‘accountability theory’ assumes that refugee law should be informed by the principles of state responsibility that have developed in public international law.
On the other hand, the case of Khawar considered a ‘protection based construction’ of the refugee definition. A protection based construction equates the concepts of persecution and protection.[12] Accordingly, the state of nationality’s failure to offer protection from harm itself satisfies the refugee definition and obliges state parties to the Convention to offer surrogate protection. The decision in Khawar demonstrates that the relevant equation is persecution = serious harm + the failure of the state to protect. It was further considered in Khawar that state conduct, whether passive or active, is only relevant to the question of persecution to the extent that the conduct could itself be characterised as persecution. By adhering to a ‘protection based approach’, the emphasis in Australia rests on the nexus between the state’s failure to protect and the reason for the persecution, for example the victim’s membership in a particular social group, rather than the private actor’s motivation for harming the victim or the state’s failure to protect the refugee from persecution in itself.
The position enunciated in Khawar is consistent with the approach adopted by Hathaway, that refugee law should not be concerned with abstract questions of culpability with regards to the extent of state practice adopted by states to protect its citizens. Rather, refugee law must be concerned with a more concrete question of protection that considers whether a state has a formal system which operates in practice to eliminate a real risk of harm for the applicant. Accordingly, the state’s intention to harm is irrelevant, whether as a result of commission, omission, or incapacity. The broader principles of refugee law remain that people are denied access to basic guarantees of human dignity, and therefore merit protection under the Refugee Convention.[13]
This is the position under Australian refugee law. This approach enables Australia to consider claims of sexual and gender based persecution committed by non-state actors as falling within the protection available under the Refugees Convention.
Many academics and commentators have argued that the effect of Khawar has been tempered by the introduction of the Migration Legislation Amendment Act (No 6) 2001 (Cth) which sought to neutralise the impact of the decision.[14] Regardless of the legislator’s intention, the decision in Khawar remains sound and continues to be cited and is integral to jurisprudential development in this area of the law. The legislator’s attempt to modify the result in Khawar does not appear to have been effective in practice. Although such a conclusion may be simplistic, at least in the context of judicial review of migration decisions, the legislative amendments remain uncontested and play a somewhat limited role in the interpretation of sexual and gender based persecution as falling within the terms of the Refugees Convention.
A doctrinal and policy obstacle for sexual and gender based persecution claims is the requirement of a causal nexus between the fear of persecution and one of the five Convention grounds in the Refugees Convention. In an Executive Committee conclusion, the UNHCR has claimed that the ‘membership of a particular social group’ ground of the Refugees Convention is considered the most appropriate for female asylum seekers fleeing sexual and gender based persecution.[15] In Australia, the decision of Khawar has determined that ‘gender’ could be the defining characteristic of a ‘particular social group’ and where a pattern of discriminatory treatment exists, women in a country could constitute a ‘particular social group’ for the purposes of the Refugees Convention.
The ‘religion’ and ‘political opinion’ grounds are also suitable and can accommodate women fleeing sexual and gender based persecution. There appears to be a considerable degree of overlap between the religion and political opinion grounds in many cases involving women fleeing in fear of punishment for transgressing social mores. A comprehensive analysis of the extent to which Australian refugee jurisprudence has considered sexual and gender based persecution as falling within the Convention grounds is beyond the scope of this article. Nevertheless, it is useful to make some brief observations about the extent to which sexual and gender based persecution claims have been considered under the ‘membership of a particular social group’ Convention ground in Australia.
International jurisprudence on the definition of a ‘membership of a particular social group’ is diverse and continues to evolve. In particular, two approaches have developed in common law jurisdictions: the ‘protected characteristics’ approach and the ‘social perception’ approach.[16] Australian courts have adopted a ‘social perception’ approach which examines whether a group shares a common characteristic which sets it apart from society at large. For example, in Applicant S v MIMIA,[17] a ‘particular social group’ was considered to fall under the Refugees Convention if:
the group was identifiable by a characteristic or attribute common to all members of the group;
the characteristic or attribute common to all members of the group was not the shared fear of persecution;
the possession of that characteristic or attribute distinguished the group from society at large.[18]
There is, however, no requirement that the group be recognised or perceived by society as a cognisable group within the society. The common characteristic or attribute that unites a particular social group may constitute any attribute, activity, belief or interest that distinguishes the group from other members of society.[19]
In contrast, the jurisprudence in Canada, United Kingdom and USA has emphasised the ‘protected characteristics’ approach, which considers whether a group is united by an immutable characteristic or by a characteristic so ‘fundamental to human dignity that a person should not be compelled to forsake it’.[20] An immutable characteristic cannot be changed. It is innate (ie sex or ethnicity) or unalterable. The ‘social perception’ approach however, recognises that external factors can be important to a proper social group definition. By adopting a ‘social perception approach’ Australia is able to provide much more expansive protection for female asylum seekers fleeing sexual and gender based persecution.
According to Applicant S, ‘women’ in any given society can constitute a ‘particular social group’ for the purposes of the Refugees Convention, and arguably so, considering that a fundamental distinction in a society is the difference between men and women and in most cultural contexts discrimination against women occurs collectively and affects all women. In SYLB v Minister for Immigration and Multicultural and Indigenous Affairs,[21] Justice Branson discussed (in light of Applicant S), that it was ‘hard, if not impossible, to imagine a society in which women do not constitute a particular social group within the meaning of Article 1A(2) of the Refugees Convention’. Similarly, North J, in Minister for Immigration and Multicultural Affairs v Cali,[22] adopting a social perception approach, stated that:
… while there is a great debate among theorists as to the nature of gender and its construction, Somali society is constructed along the two lines of males and females. Their roles and status are not interchangeable. There are expectations as to their behaviour and to the particular positions they may occupy in society. They are defined into womanness by law and custom as well as by sex. This is not a society in which women are first of all citizens and secondarily women.
In spite of the perceived commonality between women and the ability to separate them as a cognisable group within a society, Australian courts have a tendency to favour an assessment of subsets of social groups that have specific characteristics or circumstances that separate them in comparison to larger groups of women such as ‘Sikh women in India’ or ‘Thai women who are discriminated against because of their gender’. In the case of Applicant S469 of 2002 v MIMIA,[23] it was considered that females in Thailand do not constitute a ‘particular social group’ as they do not have some form of internal linking or unity of characteristics, attributes, beliefs, interests or goals to make them a cognisable group within Thai Society.
Similarly, in the case of Kaur v MIMA,[24] it was held that Sikh women were far too diverse a collection of persons to be seen as united or cognisable to be considered a social group under the Refugees Convention. Such a view is further supported by Kirby J in Khawar, who found that categories encompassing large numbers of people, such as ‘women in Pakistan’ could never satisfy the legal requirements under the Refugees Convention. However, there are some cases which have decided that certain categories of women — such as ‘young Somali women fleeing forced marriages’,[25] ‘young Somali women without male protection’,[26] ‘single Indian women living alone in Fiji’,[27] and most recently ‘Thai women who were victims of people trafficking and/or Thai women who were victims of people trafficking who have cooperated with the law enforcement officials in prosecutions in Australia’[28] — can fall under the Refugees Convention.
Australian jurisprudence on private forms of sexual and gender based persecution and the protection available under the Refugees Convention paints a progressive landscape. As the international refugee flow continues to escalate and new waves of migrants test the boundaries of international refugee protection with claims of sexual and gender based persecution, Australian jurisprudence provides a positive example of a flexible interpretation of the refugee definition. Despite the structural limitations of the ‘refugee’ definition and the absence of a separate Convention ground of gender, Australian courts have interpreted the Convention ground of ‘membership of a particular social group’ flexibly to broaden the protection available for female asylum seekers arriving within the state’s boundaries.
[*] UDARA JAYASINGHE is a Senior Solicitor at Clayton Utz Lawyers.
© 2006 Udara Jayasinghe
[1] UNHCR, ‘Sexual and Gender-Based Violence against Refugees, Returnees and Internally Displaced Persons: Guidelines for Prevention and Response’ (May 2003) 15.
[2] H. Charlesworth, C. Chinkin and S. Wright, ‘Feminist Approaches to International law’ in R J Beck, A C Arend and R D Vander Lugt (eds), International Rules: Approaches from International law and International relations (1996), 265; Jacqueline Greatbatch, ‘The Gender Difference: Feminist Critiques of Refugee Discourse’ (1989) 1 International Journal of Refugee Law 518, 519; Jacqueline Castel, ‘Rape, Sexual Assault and the Meaning of Persecution’ (1992) 4 International Journal of Refugee Law 39.
[3] [2000] HCA 55; (2000) 204 CLR 1, 45–46.
[4] Migration Act 1958 (Cth) s 36.
[5] See Horvath v Secretary of State for the Home Department [2000] UKHL 37; (2000) 3 All ER 577, 580–581; Canada v Ward (1993) 2 SCR 689, 716–17; Minister for Immigration and Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501.
[6] [2002] HCA 14; (2002) 210 CLR 1 [13] per Gleeson CJ.
[7] Minister for Immigration and Multicultural Affairs v Ndege (1999) FCA 783.
[8] [2004] HCA 18; (2004) 205 ALR 487.
[10] Walter Kalin, ‘Non-State Agents of Persecution and the Inability of the State to Protect’ (2001) 15 Georgetown Immigration Law Journal 415, 416.
[11] Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/ 2003 (2004) HCA 18 (21 April 2004) [54].
[12] Reinhard Marx, ‘The Notion of Persecution by Non-State Agents in German Jurisprudence’ (2001) 15 Georgetown Immigration Law Journal 447, 450.
[13] James Hathaway, The Law of Refugee Status (1991) 128.
[14] Susan Kneebone, ‘Women within the Refugee Construct ... The Australian Experience’ (2005) 17 International Journal of Refugee Law 7.
[15] The UNHCR has adopted that ‘states in the exercise of their sovereignty are free to adopt the interpretation that women asylum seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a “particular social group” within the meaning of Article 1A(2) of the 1951 United Nations Refugees Convention’: UNHCR, above n 1, 5.
[16] Volker Turk and Frances Nicholson, ‘Refugee Protection in International law: An Overall Perspective’ in Erika Feller, Volker Turk and Frances Nicholson (eds,) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) 3, 17.
[17] (2004) HCA 25 [36].
[18] See also R v Immigration Appeal Tribunal; Ex parte Shah [1999] UKHL 20; (1999) 2 AC 629 [657].
[19] Applicant S v MIMIA, (2004) HCA 25 [408]; [410–411].
[20] Turk and Nicholson, above n 16.
[25] Weheliye v MIMA (2001) FCA 1222.
[26] Minister for Immigration and Multicultural Affairs v Cali (2000) FCA 1026.
[27] SZAYT v MIMIA (2005) FCA 857.
[28] VXAJ v MIMIA (2006) FMCA 234.
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