Hunter, Catherine --- "Refugee Case Study: Naima Khawar" [2002] HRightsDef 18; (2002) 11(2) Human Rights Defender 16

Refugee case study: Naima Khawar

Catherine Hunter

Naima Khawar fled Pakistan with her children in 1997. She claimed to have experienced serious domestic violence at the hands of her husband and his family. According to Ms Khawar’s evidence, she was slapped, beaten to the point of being hospitalised, and doused with petrol. On four occasions she had sought police help but none was forthcoming.

Soon after arriving, Ms Khawar applied for a protection visa. On being refused, she appealed the decision to the Refugee Review Tribunal (RRT). The RRT affirmed the original decision. They determined that if such harm had taken place, it was motivated by personal considerations involving Ms Khawar’s lack of a dowry and her husband’s family’s dislike of her. It was, therefore, not relevant to the Refugee Convention. Ms Khawar appealed this decision through all levels of review and was ultimately successful in the High Court.

In response to decisions such as MIMA v Khawar that involve gender-related persecution, the Minister for Immigration and Multicultural Affairs has acted to narrow the interpretation of the 1951 Convention Relating to the status of Refugees. He argued that the definition of a refugee (contained in the Refugee Convention and translated into Australian domestic law in the Migration Act) has been interpreted too broadly. Migration Legislation Amendment Bill (No. 6) 2001 was introduced to ‘restore the application of the Convention ... in Australia to its proper interpretation’. Clearly cases such as MIMA v Khawar will fall outside the accepted definition.

Women’s rights have become recognised as a mainstream part of human rights. In response, rape and other types of sexual violence have been accepted to constitute war crimes. The statute of the International Criminal Court contains special provisions relating to gender crimes. The UNHCR has accepted that gender-related harm may be a valid form of persecution under the Refugee Convention. Special protections have been implemented for refugee women in camps and through the provision of resettlement places for women particularly at risk. For women who flee gender-related persecution to a host country such as Australia, however, there is a real risk of such persecution going unrecognised.

Catherine Hunter is currently completing her PhD on the discriminatory treatment of gender- related asylum claims in Australia in the Faculty of Law, UNSW. She is also working on a research project on the United Nations Commission on Human Rights and its role in the separation and reconciliation of civil/political and economic/social/cultural rights.

This Case Study is taken from a document prepared by SfS entitled: Australia’s Mandatory Immigration Detention System. It is reproduced with permission of the author.