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Chow, Eugene --- "Not There Yet': Women Fleeing Domestic Violence & The Refugee Convention" [2020] UNSWLawJlStuS 32; (2020) UNSWLJ Student Series No 20-33


‘NOT THERE YET’: WOMEN FLEEING DOMESTIC VIOLENCE & THE REFUGEE CONVENTION

EUGENE CHOW

According to the World Health Organisation, domestic violence is a “global health problem of epidemic proportions”,[1] with estimates of almost one-third of women worldwide to have experienced physical and/or sexual violence from their intimate partner in their lifetime.[2] Despite this alarming figure, women around the world are often left with no recourse against their partners due to their country’s culture of tolerating domestic violence. Neglected and evermore vulnerable, many of these women are forced to escape to another country in hopes of finally obtaining the protection they deserve.

Yet, if there is ever a popular conception of refugees, it describes brave male political activists or religious adherents, not women fleeing violence from their intimate partners.[3] Indeed, while the 1951 Refugee Convention and the 1967 Protocol (collectively, the ‘Convention’)[4] applies indiscriminately, it was not drafted with the nuances of gender in mind, and its development was largely guided by the male refugee prototype.[5] As a result, women fleeing domestic violence have historically faced a myriad of barriers in meeting the refugee definition. Most notably, they have to demonstrate a well-founded fear of ‘persecution’, traditionally understood to be exclusively perpetuated by state actors,[6] and establish its connection to their membership of a particular social group (‘PSG’), the Convention ground most applicable to them.[7] Though advances in international human rights law have had an ameliorating effect,[8] considerable obstacles remain in these women’s journey to protection.

This essay critically examines the protection gaps for women fleeing domestic violence and highlights how these gaps may be addressed. Part I of this essay briefly discusses the refugee definition and its gender deficiency, and outlines how international human rights law has developed normatively in response to this deficiency. Part II examines the first major barrier that women fleeing domestic violence face in meeting the definition: establishing violence from their intimate partners as ‘persecution’. Part III then discusses the more significant barrier for these women today: demonstrating their membership of a PSG. Finally, Part IV considers how protection may be improved for women fleeing domestic violence.

I SETTING THE SCENE

A The Refugee Definition & Its Gender Deficiency

Under article 1A(2) of the Convention, a refugee is defined as a person who has 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 his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself or [herself] of the protection of that country.[9]

This definition is a reflection of the historical context in which the Convention was drafted.[10] Against the backdrop of the atrocities committed by Nazi-Germany during World War II and the events preceding the Cold War, the primary concern for drafters of the Convention was the need to protect people who were persecuted by reason of their race, religion, nationality or political opinion.[11] However, the drafters may also have foreseen other situations where a person’s fear of persecution may not align with the aforementioned grounds, but that they were still deserving of protection.[12] Thus, membership of a PSG may have been included as a “catch-all” category in the definition.[13]

Ostensibly, the refugee definition is gender-neutral, yet feminist scholars have long highlighted its failure to acknowledge and protect women from gender-related forms of harm such as domestic violence.[14] Specifically, the core of the feminist critique is that the definition reflects the prevailing human rights philosophy at the time it was drafted, which privileged the protection of male-dominated, political activities in the ‘public’ sphere, over women’s activities which are largely seen to take place within the ‘private’ realm.[15] Charlesworth argues that this singular focus on the public sphere sustains and reproduces the public/private dichotomy of international law, where ‘public’ matters are of international concern, but ‘private’ matters are to be exclusively vested in a state’s domestic jurisdiction.[16] In turn, as ‘women’s activities’ are predominantly situated in the private realm, their experiences of harm from non-state actors are rendered invisible and irrelevant to the international community.

In the context of international protection, this means that women’s experiences of harm do not fit naturally within the refugee definition.[17] Here, the difficulty ‘lies not in the legal definition [itself] but rather in how the definition is interpreted and applied’.[18] Specifically, since harmful acts against women such as domestic violence are perceived to be private in nature, they are not considered to fall within masculine interpretations of ‘persecution’, that is, politically-based persecution in the public sphere.[19] Thus, despite the Convention’s indiscriminate reach, its gender deficiency has ‘had the effect of denying women their right to international protection’.[20]

B Addressing the Deficiency: Normative Developments in International Human Rights Law

Following years of neglecting the protection needs of women, a paradigm shift occurred from the mid-1980s onwards, in which there was a greater awareness of gender’s normative place in refugee policy.[21] This shift was largely due to earlier efforts by feminist scholars who challenged prevailing biases in international human rights law and reconceptualised women’s experiences of harm which supposedly occurred in the ‘private’ sphere.[22] Notably, they instilled the unprecedented idea that sexual violence is often anything but private, as it is not only a weapon of war but also a form of gender-specific persecution used in political repression.[23] Feminist scholars also engaged critically with the normalised conception that domestic violence is a private conflict caused by everyday tensions, stress and jealousies.[24] Specifically, they highlight that domestic violence against women is in essence a tool of female subordination enabled by social norms,[25] and therefore deserving of international recognition as a human right violation.[26] As Copelon notes, domestic violence is ‘a mechanism for patriarchal control of women that is built upon male superiority and female inferiority, sex-stereotyped roles and expectations, and the economic, social and political predominance of men and dependency of women’.[27] In other words, the driving impetus for domestic violence against women is often their gender in a discriminatory and oppressive social context. Viewed this way, domestic violence is hardly ‘private’.

As such, this feminist discourse resulted in significant advances in international human rights law. Most notable was the development of the Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol (collectively, ‘CEDAW’),[28] which recognised women’s rights as human rights. In its General Recommendation No. 19, the CEDAW Committee noted that violence against women, including domestic violence, was a form of discrimination that inhibits women’s enjoyment of human rights.[29] Furthermore, it recommended that signatories to CEDAW must exercise due diligence to prevent any violence against women, even if the harm was perpetrated by private actors.[30] These recommendations were later adopted in full in the United Nations Declaration on the Elimination of Violence Against Women (‘DEVAW’).[31]

Undoubtedly, this development in international human rights law supplied the much-needed normative push for addressing the gender deficiency in the international refugee framework.[32] In 1985, the United Nations High Commissioner for Refugees (‘UNHCR’) Executive Committee published Conclusion No. 39, which crucially acknowledged that ‘women asylum seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society’ may fall within the refugee definition.[33] Subsequently, a number of national and international gender guidelines have been developed to legitimise women’s claims for protection, and more importantly assist decision-makers in understanding the role of gender in refugee status determination (‘RSD’). Notably, UNHCR issued guidelines in 2002 on the meaning of gender-related persecution,[34] which promoted a gender-sensitive interpretation of the Convention by ‘[ensuring] that RSD procedures would not marginalise or exclude gender-related experiences of persecution’.[35] On the national level, similar guidelines have also been produced in Australia,[36] Canada,[37] the United Kingdom (‘UK’)[38] and the United States (‘US’).[39] Ultimately, the international refugee regime has progressed significantly in mitigating the inherent gender deficiency found in the Convention.

II WELL-FOUNDED FEAR OF ‘PERSECUTION’ & WOMEN FLEEING DOMESTIC VIOLENCE

Perhaps the most significant indicator of this progress is the evolution of ‘persecution’ as an element within the refugee definition. While there is no universally accepted notion of ‘persecution’,[40] it has generally been held to encompass threats to life or freedom,[41] or serious violations of human rights such as torture or cruel, inhuman or degrading treatment.[42] Depending on severity, domestic violence against women will often meet this threshold of harm. Despite this, decision-makers in RSD has traditionally focused on persecution by state actors, and ignored persecution by non-state actors given the public/private dichotomy. As Goodwin-Gill & McAdam note, ‘the problem with [domestic violence] against women is precisely that it is perceived, either as ‘domestic’, or as individual and non-attributable to the State or other political structure’.[43] Thus, establishing a well-founded fear of ‘persecution’ has historically been a significant barrier to international protection for women fleeing domestic violence.

However, with the advent of women’s rights in international human rights law, disregarding domestic violence carried out by non-state actors is no longer tenable in RSD. This normative shift is particularly evidenced by the UNHCR Handbook released in 1979,[44] which states that ‘where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to provide effective protection’.[45] Hence, when determining whether women fleeing domestic violence have a well-founded fear of ‘persecution’, states are no longer regarded as uninvolved or without culpability in the private actor’s actions.[46] Rather, the focus of inquiry is directed towards whether states had failed to protect women suffering from domestic violence.[47]

A States’ Failure to Protect

The landmark case which first affirmed UNHCR’s position and characterised non-state actor violence as ‘persecution’ through a state’s failure to protect was Ward.[48] While this Canadian case did not concern domestic violence, the Canadian Supreme Court’s reasoning has proved influential not only to Canadian decision-makers, but also to other jurisdictions in dealing with domestic violence claims.[49] In short, the Court held that serious violations of human rights by non-state actors can amount to persecution if the state in question does not or will not protect its nationals from such violations.[50] Here, the Court noted that a failure to protect can be demonstrated by ‘clear and convincing confirmation’ of such inability to protect.[51] This includes:

testimony of similarly situated individuals being let down by the state’s protection, or the claimant’s own testimony of past personal incidences where protection did not materialise. Absence [this] evidence...states should be presumed capable of protecting their citizens.[52]

Importantly, the Court also considered whether a well-founded fear of persecution, formulated based on a state’s failure to protect, exists if a claimant had not actually approached the state for protection.[53] On this issue, the Court endorsed Hathaway’s opinion and concluded that a claimant’s failure to approach the state would only defeat their claim if state protection might “reasonably have been forthcoming”.[54] Thus, if the state had demonstrated a systemic pattern of being unwilling or unable to provide protection, a well-founded fear of persecution can still be established regardless if a claimant had sought a state’s protection.

This linkage of a state’s failure to protect and ‘persecution’ has also been affirmed by the UK House of Lords in Islam; ex parte Shah,[55] a domestic violence case which involved two women who were abused by their husbands after being accused of adultery in Pakistan. Consistent with UNHCR’s approach, the House of Lords analysed ‘persecution’ as having two central elements; serious harm and a failure of state protection.[56] Applying this, the House of Lords held that the domestic violence experienced by the claimants amounted to persecution as the violence they had experienced and feared for the future was severe and such violence was condoned and tolerated by authorities in Pakistan.[57] Here, the House of Lords relied on substantial evidence of ‘institutionalised discrimination against women by the police, courts and the legal system – the central organs of the state’,[58] which clearly indicated that the state would not protect them.[59]

B When Do States Fail to Protect?

Both Ward and Islam; ex parte Shah were influential cases that shifted how ‘persecution’ is perceived as an element of the refugee definition, which in turn had positive implications for domestic violence claims. Though, this development has given rise to a practical issue which still persists for women fleeing domestic violence in RSD. Specifically, decision-makers at all levels have struggled to adhere to an appropriate methodology for establishing a state’s unwillingness or inability to protect against non-state actors.[60] As Zambelli notes, decision-makers have become too distracted by questions of non-protection; questions relating to rogue police officers not offering protection to women, so-called ‘duties’ of domestic violence victims to seek local protection and whether ‘serious efforts’ of states to protect should preclude a finding of their failures to protect.[61] While these are legitimate issues to consider, they do not have a clear-articulated connection to any element of the refugee definition.[62] Furthermore, undue fixation on them will likely exacerbate claimants’ evidentiary burden,[63] and cause decision-makers to lose sight of the systemic issues which ultimately contribute to a state’s failure to provide effective protection.[64] Notably, in a study conducted by Macintosh, she found that when decision-makers determined whether it was reasonable for women suffering from domestic violence to not seek state protection, they generally failed to recognise the relevance of the social, cultural, economic and psychological dynamics of domestic violence at hand.[65] Therefore, the current analytical framework for assessing non-protection is unnecessarily jeopardising the ability of women fleeing domestic violence to establish ‘persecution’.[66]

To address this issue, decision-makers should apply legal standards from international human rights law as the primary indicator of a state’s failure to protect.[67] As Zambelli argues, assessing state (in)action against minimum standards derived from international law is a more structured, objective and stable framework for analysis, as opposed to the less reliable approach of scrutinising a particular claimant’s past or potential interactions with local authorities.[68] After all, a claimant’s experiences might not be ‘truly reflective of the real relationship between the state and the private violence...[nor] might they be a reliable predictor of what might happen the next time’.[69] Accordingly, in domestic violence cases, decision-makers should refer to human rights standards found in CEDAW and DEVAW as a guide in determining when a state is ‘unable or unwilling’ to protect women against their abusers.[70] Specifically, both CEDAW and DEVAW impose positive obligations upon states to exercise ‘due diligence’ in preventing discrimination and non-state violence against women,[71] which includes taking positive measures to ensure that local authorities are adequately trained to respond to the needs of women suffering from domestic violence.[72] Hence, to ensure that the determination of a state’s failure to protect is appropriate, decision-makers should assess the state’s policies or treatment of domestic violence against the rubric provided by CEDAW and DEVAW.[73]

C Preliminary Remarks

Ultimately, recognising that ‘persecution’ can encompass domestic violence through the failure of state protection – as the courts did in Ward and Islam; ex parte Shah – represents a significant step forward for women fleeing domestic violence to be able to satisfy a crucial element of the refugee definition. While they may face practical difficulties in establishing ‘persecution’ due to inappropriate assessments of when a state has failed to provide effective protection, this issue can be mitigated by employing a human rights-based framework of analysis. Therefore, looking ahead, what remains to be done in this area is to foster greater awareness among decision-makers about ‘what it really means to ‘be persecuted’ from a human rights perspective – to be failed by one’s country, to have one’s security of person left unprotected, [and] to have one’s value as a human being called into question’.[74]

III MEMBERSHIP OF A PARTICULAR SOCIAL GROUP & WOMEN FLEEING DOMESTIC VIOLENCE

Now able to transcend the ‘private’ sphere and establish a well-founded fear of ‘persecution’, the challenge to meet the refugee definition for women fleeing domestic violence lies primarily in the requirement to show a causal nexus between their fear of persecution and one of the five enumerated grounds under the Convention.[75] As mentioned, the most arguable ground for women fleeing domestic violence is their membership of a PSG.[76] Yet, this ground has proven to be a significant barrier.

Before discussing ‘membership of a PSG’ further, brief mention should be given to the nexus requirement. As the concept of ‘persecution’ evolved into the two-limbed test to better meet the protection needs of those suffering violence from non-state actors, so has the nexus requirement. Most jurisdictions now adopt a bifurcated approach to determining nexus, meaning that either element of ‘persecution’ (serious harm or failure of state protection) can provide the required causal link to a Convention ground.[77] In Islam; ex parte Shah, the House of Lords found that the domestic abuse endured by the two claimants were not by reason of any Convention grounds.[78] Nonetheless, the two claimants were able to demonstrate the required nexus as the House of Lords held that Pakistan’s failure to protect them was by reason of their membership of a PSG.[79] Thus, the bifurcated approach to determining nexus has been a positive development for women fleeing domestic violence.

Though, establishing ‘membership of a PSG’ first remains the primary hurdle for women fleeing domestic violence. As Foster notes, no other Convention ground has been subject to the same degree of scrutiny and conflicting interpretive approaches as ‘membership of a PSG’.[80] Indeed, given the broad scope of ‘PSG’ and states’ margin of appreciation, it is no surprise that no uniform approach to interpreting PSG has emerged.[81] In fact, certain states have interpreted PSG in a way which make it significantly harder for women fleeing domestic violence to constitute a PSG. However, that is not to say there is no general agreement about certain aspects of PSG as a Convention ground. Firstly, it is widely accepted that there is no requirement for a group to exhibit internal cohesion in order to be a PSG.[82] Furthermore, a PSG can exist irrespective of its size.[83] It is also well-established that a PSG cannot be constituted on the mere basis that all its members share a fear of persecution.[84] Finally, it is not necessary to show that all members of a group are at risk of persecution to be a PSG.[85]

A Approaches to PSG

In conjunction to these general principles, there are currently two dominant approaches to interpreting PSG: ‘protected characteristics’ and ‘social perception’.

1 Protected characteristics

The protected characteristics approach originated in the US case Re Acosta,[86] but it has proved influential beyond the US context, given that it is now the dominant approach among common law countries such as Canada and the UK.[87] Under this approach, ‘PSG’ is to be construed by reference to the principle of ejusdem generis, which means the ‘general words used in an enumeration with specific words should be construed in a manner consistent with the specific words’.[88] Applying this, a PSG means:

a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared experience such as former military leadership or land ownership.[89]

As such, it is widely accepted that women who have suffered domestic violence will constitute a ‘PSG’ under the protected characteristics approach. Quite unequivocally, the Supreme Court of Canada held in Ward that one’s gender was a common, immutable characteristic,[90] and thus ‘women’ alone can clearly constitute a PSG.[91] In Islam; ex parte the House of Lords adopted the same reasoning, and identified the claimants’ PSG as “Pakistani women”.[92] Significantly, Lord Hoffman noted that while various possible PSGs had been argued before the Lords, these PSGs were incorrectly characterised by an exaggerated focus on sub-groups and identifying characteristics,[93] which led to the neglect of the essential immutable characteristic of gender.[94] In the views of Lord Hoffman and Lord Steyn, the correct PSG under the protected characteristics approach is simply women in a social context, namely, women in Pakistan, where gender discrimination is pervasive.[95]

2 Social perception

While the House of Lords in Islam; ex parte Shah predominantly applied the protected characteristics test, they also alluded to the alternative approach of social perception,[96] which originated in Australian jurisprudence.[97] First invoked by the Australian High Court in Applicant A,[98] a PSG characterised by the social perception approach means a group that is perceived as distinct in a particular society.[99] As Dawson J explained:

the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large.[100]

The High Court elaborated on this approach further in Applicant S,[101] commenting that the shared characteristic of the group cannot be the fear of persecution,[102] and that a primary indicator of a cognisable group is ‘whether the society in question perceives there to be such a group’.[103]

Under the social perception approach, women fleeing domestic violence have also found success in demonstrating that they belong to a PSG. In Khawar,[104] the claimant was a Pakistani woman who had suffered a decade of severe domestic abuse from her husband and his family, and who had failed to secure any protection from the local authorities. Adopting the social perception approach, Gleeson CJ arrived at the same conclusion as the House of Lords in Islam; ex parte Shah and concluded that ‘women in Pakistan’ were evidently a PSG,[105] to which the claimant belonged. He observed that ‘women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated’.[106] On the other hand, McHugh J and Gummow J held that the claimant belonged to a narrower PSG, noting that ‘the operation of cultural, social, religious and legal factors’ have an obvious bearing upon how women are perceived in Pakistani society.[107]

B The Continuing Challenges of PSG

1 The insistence on narrowness

As the above caselaw indicates, women fleeing domestic violence may satisfy the PSG ground under both the protected characteristics approach and the social perception approach just by being ‘women’. Thus, one may wonder why the PSG ground remains a significant barrier. Simply, the answer lies in the insistence on narrowness despite such caselaw.

As Foster notes, there has been an ‘overwhelming reluctance of both advocates and decision-makers to frame the relevant PSG as simply ‘women’’ in a social context.[108] Rather, they have shown a tendency to incessantly narrow and particularise PSG categories.[109] Indeed, even in Khawar, some High Court justices formulated the relevant PSG respectively as:

married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by the member of the household;[110]

and

a particularly vulnerable group of married women in Pakistan, in dispute with their husbands and their husbands’ families, unable to call on male support and subjected to, or threatened by, stove burnings at home as a means of getting rid of them yet incapable of securing effective protection from the police or agencies of the law.[111]

Evidently, not only are both PSGs artificially contrived, they also border on contravening the general principle that a PSG cannot be constituted on the mere basis that all its members share a fear of persecution.[112] The issue here of course, is that if there is a culture among decision-makers to not construe a PSG compromising of ‘women’ only, women facing gender-related violence will be forced to construe narrower PSGs. In doing so, they risk contravening the general principles governing the PSG ground, which in turn means they may not meet the refugee definition.[113] In the US case Kante,[114] this is precisely what happened. When faced with the US jurisprudence which has always rejected ‘women in a social context’ as a PSG,[115] the claimant construed the PSG as ‘women subjected to rape as a method of government control’.[116] Understandably, however, the US Court of Appeals for the Sixth Circuit rejected the claimant’s application for refugee status as this PSG was ‘circularly defined by the fact that it suffers persecution’.[117] As such, while Kante did not concern domestic violence, it nevertheless highlights the troubling effects of not recognising ‘women in a social context’ as a PSG for all who suffer gender-related violence.

(a) So-called Floodgates

The insistence on narrowing PSG categories concerning women appears to stem from an implicit floodgates concern;[118] that if ‘women’ alone is to be recognised as a PSG, ‘too many of the world’s downtrodden women will rush the gates of the more prosperous countries of the developed world seeking asylum there’.[119] However, this fear of ‘opening the floodgates’ is at best, ignorant, and at worst, completely disgenuous.

Firstly, as a matter of fact, the states which have been more willing to recognise ‘women in a social context’ as a PSG have not experienced manifestations of such floodgate concerns. As Musalo observes, since the Ward decision in which the Canadian Supreme Court held that ‘gender’ can be the immutable characteristic that defines a PSG, there has been no “explosion” of gender-related claims in Canada.[120] On a more fundamental level, floodgate concerns ignore the essential nature of RSD; that it is a highly individualised, case-by-case process.[121] While recognising ‘women’ as a PSG may make it easier for prospective claimants to meet the ‘membership of a PSG’ ground, they would still have to satisfy other elements under the refugee definition, none easier than the other.

Therefore, the incessant narrowing of PSGs based on floodgate concerns is inherently a misguided exercise. Without addressing this issue, the ‘membership of a PSG’ ground will remain a significant barrier for women fleeing domestic violence to meet the refugee definition.

2 Exceptionalism: A Brief Case Study on the US

Another worrying concern surrounding the PSG ground is the creeping legal exceptionalism towards its interpretation and application in the US. Among other states, the US has stood out for its notorious stance towards refugee claims based on domestic violence.[122] The enabling factor has always been its unique yet restrictive approach to interpreting the PSG ground, which has prevented many domestic violence survivors to successfully seek refuge there.[123]

Specifically, US asylum law requires formulations of PSGs to satisfy both the protected characteristics and social perception test.[124] This approach not only narrows formulations of PSGs, it is also contrary to UNHCR’s position that states should only require PSGs to satisfy one of the two tests so that protection gaps are prevented.[125] More problematic, however, is that US jurisprudence has inserted an additional requirement of particularity, which specifies that a PSG cannot be too populous or diverse.[126] Evidently, this requirement is inconsistent with the general principle that a PSG can exist irrespective of its size.[127] The effect of this requirement is also beyond troubling, as it suggests that ‘women’ can never be construed as a PSG due to its inherent large size. As discussed above, this has significant implications for women fleeing domestic violence in meeting the refugee definition.

Currently, however, the most disturbing issue for domestic violence survivors who have fled or are contemplating fleeing to the US are the asylum regulations recently proposed by the Trump administration.[128] Described as an attempt to “abolish asylum”,[129] the proposed regulations outline a non-exhaustive list of nine social groups that, without additional evidence, would generally be ‘insufficient to demonstrate a PSG’.[130] Among the nine excluded circumstances are people involved in ‘interpersonal disputes of which governmental authorities were unaware or uninvolved’,[131] which encompass the majority of women fleeing domestic violence. Moreover, the proposed regulations establish that the nexus requirement will not be met if gender is raised as the link to persecution.[132] If implemented, the regulation will effectively bar women fleeing domestic violence from ever meeting the refugee definition in the US. As such, the International Rescue Committee had just recently reported that domestic violence in Latin America – a region where most women seeking refuge in the US flee from[133] – has increased exponentially since COVID-19.[134] Thus, while the protection needs of women fleeing domestic violence can only be expected to increase, the US is unapologetically turning its back on them.

Ultimately, the US has always demonstrated legal exceptionalism in interpreting and applying the PSG ground, given its unique and somewhat obscure requirements for establishing a PSG. However, the recent proposed regulations represent an unprecedented withdrawal from the international refugee regime by radically redefining the PSG ground. Although US’ margin of appreciation must be respected, they are under an international legal obligation to interpret the PSG ground in good faith.[135] Therefore, the current trajectory of US asylum law in relation to women fleeing domestic violence should be of significant concern to the international community.

IV IMPROVING PROTECTIONS FOR WOMEN FLEEING DOMESTIC VIOLENCE

While reform will ultimately depend on the political will of states, it is nevertheless important to highlight what is much-needed to improve protections for women fleeing domestic violence.

A Legal Recognition That Gender Can Define a PSG

To prevent the unnecessary and harmful effects of narrowing PSG categories concerning women fleeing domestic violence, there must be a legal recognition that gender is a defining characteristic of a PSG. While such recognition already exists in soft-law such as the UNHCR Gender Guidelines and other domestic Gender Guidelines,[136] their impact has been limited given their non-binding nature. Furthermore, despite longstanding precedent which held gender to be a straightforward application of the protected characteristics approach,[137] decision-makers continue to formulate ‘overly convoluted and artificially contrived’ PSGs for women fleeing domestic violence.[138] In light of the above, it may be more effective to codify ‘gender’ as one of the defining characteristics of a PSG into domestic legislation, as this will bind decision-makers and properly instil a culture of recognising ‘women in a social context’ as a PSG.

As such, this proposition is not a legal novelty, as legislation to this effect already exists in states such as Spain,[139] South Africa[140] and Sweden.[141]

B Gender – A Sixth Ground in the Refugee Definition?

An alternative and perhaps more effective way to improve protection for women fleeing domestic violence is to insert ‘gender’ as a sixth ground of persecution into the refugee definition.[142] While implementing such a change to the Convention is beyond unthinkable given political realities and the difficulties of negotiating at an international level,[143] it may be an option worth exploring at a domestic level. Indeed, providing a sixth ground of gender will avoid entirely the persisting issues of the PSG ground for women fleeing domestic violence.[144] This proposal is also supported by the CEDAW Committee, where in its General Recommendation No. 32,[145] it urged all states to domestically recognise gender as a free-standing ground for seeking protection.[146] As Steven argues, adding gender as a reason of persecution ‘would recognise the unique problems that women face, as opposed to trying to fit them into pre-existing categories that do not consider women’s needs and often work against them’.[147] In other words, adding gender as a ground will, in theory at least, address the gender deficiency in the refugee definition.

However, it is worth noting that UNHCR stated in 2002 that ‘there is no need to add an additional ground’,[148] as a proper interpretation of the PSG ground will clearly encompass claims made by women fleeing domestic violence.[149] Yet, this argument has proven somewhat unsatisfactory, given that current state practice has continued to diverge from UNHCR’s approach to interpreting the PSG ground. Another argument against the insertion of gender as an independent ground is that it will create more interpretive issues, such as confusing decision-makers on how the gender ground might interact with the PSG ground.[150] While this is a legitimate concern, it can arguably be overcome with sufficient guidance. As Randall notes,

Recognizing gender as a basis of persecution is not in and of itself a solution to all of the difficulties and interpretive obstacles facing women fleeing [domestic violence]. But it is an essential move in the direction of delivering a more just and gender- sensitive asylum process in the world's affluent and safer nations, those which purport to offer persecuted people safe refuge and state protection.[151]

Therefore, a reconceptualization of the refugee definition is perhaps long overdue.

V CONCLUSION

That women can now seek asylum from domestic violence has been described as ‘one of the most remarkable achievements in [our] legal history’.[152] Indeed, the international community has come a long way in mitigating the gender deficiency in the refugee definition, most notably by reconfiguring the public/private dichotomy and enabling women fleeing domestic violence to establish a well-founded fear of ‘persecution’. However, considerable obstacles remain, especially in how the PSG ground is interpreted and applied towards these women. Ultimately, the significant progress made in promoting the protection of women fleeing domestic violence is not a call for complacency. As Foster puts it succinctly, we are “not there yet”.[153]

VI BIBLIOGRAPHY

A Articles/Books/Reports

Adams, Laura, ‘Beyond Gender: State Failure to Protect Domestic Violence Victims as a Basis for Granting Refugee Status’ (2002) 24(2) Thomas Jefferson Law Review 239

Binder, Andrea, ‘Gender and the “Membership in a Particular Social Group” Category of the 1951 Refugee Convention’ (2001) 10(2) Columbia Journal of Gender and Law 167

Bookey, Blaine, ‘Domestic Violence as a Basis for Asylum: An Analysis of 206 Case Outcomes in the United States from 1994 to 2012’ (2013) 24 Hastings Women’s Law Journal 107

Bacon, Rachel and Kate Booth, ‘The Intersection of Refugee Law and Gender: Private Harm & Public Responsibility: Islam; Ex Parte Shah Examined’ [2000] UNSWLawJl 57; (2000) 23(3) UNSW Law Journal 135

Cary, Breanna, ‘Differing Interpretations of the Membership in a Particular Social Group Category and Their Effects on Refugees’ (2016) 41(2) Oklahoma City University Law Review 241

Charlesworth, Hilary, ‘What are “Women’s International Human Rights?”’ in Rebecca Cook (ed), Human Rights of Women: National and International Perspectives (University of Pennsylvania Press, 1994) 58

Copelon, Rhonda, ‘Recognizing the Egregious in the Everyday: Domestic Violence as Torture’ (1994) 25 Columbia Human Rights Law Review 291

Crawley, Heaven, Refugees and Gender: Law and Process (Jordan Publishing, 2001)

Crawley, Heaven, ‘[Engendering] International Refugee Protection: Are we there yet?’ in Bruce Burson and David Cantor (eds), Human Rights and the Refugee Definition: Comparative Legal Practice and Theory (Brill, 2016) 322

Edwards, Alice, ‘Transitioning Gender: Feminist Engagement with International Refugee Law & Policy 1985-2010’ (2010) 29(2) Refugee Survey Quarterly 21

Foster, Michelle, ‘The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential Developments relating to ‘Membership of a Particular Social Group’ (Legal and Protection Policy Series, UNHCR, August 2012)

Foster, Michelle, ‘Why we are not there yet: the particular challenge of ‘particular social group’’ in Efrat Arbel, Jenni Millbank, Catherine Dauvergne (eds), Gender in Refugee Law: From the Margins to the Centre (Routledge, 2014) 17

Freedman, Jane, ‘Taking Gender Seriously in Asylum and Refugee Policies’ in Kavita Khory (ed), Global Migration: Challenges in the Twenty-First Century (Palgrave Macmillan US, 2012)45

Goldberg, Pamela, ‘Where in the World Is There Safety For Me?: Women Fleeing Gender-Based Persecution’ in Julie Peters & Andrea Wolper (eds), Women’s Rights, Human Rights: International Feminist (Routledge, 1994) 345

Goodwin Gill, Guy S. & Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007)

Greatbach, Jacqueline, ‘The Gender Difference: Feminist Critiques of Refugee Discourse’ (1989) 1(4) International Journal of Refugee Law 518

Heyman, Michael, ‘Asylum, Social Group Membership and the Non-State Actor: The Challenge of Domestic Violence’ 36(4) University of Michigan Journal of Law Reform 767

Heyman, Michael, ‘Domestic Violence and Asylum: Toward a Working Model of Affirmative State Obligations’ (2005) 17(4) International Journal of Refugee Law 729

Jastram, Kate, & Sayoni Maitra, ‘Matter of A-B- One Year Later: Winning Back Gender-Based Asylum Through Litigation and Legislation’ (2020) 18 Santa Clara Journal of International Law 48

Larkin, Trevor, ‘Sex and Gender Violence in Asylum Law: Expanding Protection Beyond Domestic Violence’ (2016) 9(1) Drexel Law Review 227

Macintosh, Constance, ‘Domestic Violence and Gender-Based Persecution: How Refugee Adjudicators Judge Women Seeking Refuge from Spousal Violence – and Why Reform is Needed’ (2009) 26 Refuge 147

Macklin, Audrey, ‘Refugee and the Imperative of Categories’ (1995) 17(2) Human Rights Quarterly 213

Marsden, Jessica, ‘Domestic Violence Asylum after Matter of L-R-(2014) 123 The Yale Law Journal 2512

Moore, Catherine, ‘Women and domestic violence: the public/private dichotomy in international law’ (2003) 7(4) The International Journal of Human Rights 93

Musalo, Karen, ‘Revisiting Social Group and Nexus in Gender Asylum Claims: A Unifying Rationale for Evolving Jurisprudence’ (2003) 52 DePaul Law Review 777

Musalo, Karen, ‘A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women’s Claims’ (2010) 29(2) Refugee Survey Quarterly 46

Musalo, Karen, ‘Personal Violence, Public Matter: Evolving Standards in Gender-Based Asylum Law’ (2014-2015) 36(2) Harvard International Law Review 45

Musalo, Karen, ‘Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action’ (2007) 14(2) Virginia Journal of Social Policy & the Law 119

Randall, Melanie, ‘Refugee Law and State Accountability for Violence Against Women: A Comparative Analysis of Legal Approaches to Recognising Asylum Claims Based On Gender Persecution’ (2002) 25 Harvard Women’s Law Journal 281

Randall, Melanie, ‘Particularised Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognise Gender and the Legal Reception of Gender Persecution Claims in Canada, the United Kingdom, and the United States’ (2015) 23(4) American University Journal of Gender, Social Policy & the Law 529

Razack, Sherene, ‘Domestic Violence as Gender Persecution: Policing the Borders of Nation, Race, and Gender’ (1995) 8 Canadian Journal of Women & Law 45

Roberts, Anthea, ‘Gender and Refugee Law’ [2002] AUYrBkIntLaw 5; (2002) 22 Australian Year Book of International Law 159

Stevens, Mattie, ‘Reorganising Gender-Specific Persecution: A Proposal to Add Gender as a Sixth Refugee Category’ (1993) 3(1) Cornell Journal of Law and Public Policy 179

Valji, Nahla, Lee Anne de la Hunt & Helen Moffett, ‘Where are the women? Gender discrimination in refugee policies and practices’ (2003) 55 Agenda: Empowering Women for Gender Equity 61

Vogel, Theresa, ‘Critiquing Matter of A-B-: An Uncertain Future in Asylum Proceedings for Women Fleeing Intimate Partner Violence’ 52(2) University of Michigan Journal of Law Reform 343

Zambelli, Pia, ‘Knowing Persecution When We See It: Non-State Actors and the Measure of State Protection’ (2020) 32(1) International Journal of Refugee Law 28

B Cases

Applicant A and Another v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387

Canada (Attorney-General) v Ward [1993] 2 SCR 689

In re R-A-, 22 I. & N. Dec. 906 (A.G. 2001)

In re C-A-, 23I. & N. Dec. 951 (B.I.A. 2006)

In re A-R-C-G, 26 I. & N. Dec. 388 (B.I.A. 2014)

In re A-B-, 27 I. & N. Dec. 316 (A.G. 2018)

Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Shah [1999] UKHL 20; [1999] 2 AC 629

Kante v Holder, 2011 US App LEXIS 743 (6th Cir, 2011)

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1

Niang v. Gonzales, [2005] USCA10 265; 422 F.3d 1187, 1199 (10th Cir. 2005)

Re Acosta 19 I. & N. Dec. 211 (BIA, 1985)

C Legislation

Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria [Law 12/2009 of 30 October, Regulating the Right of Asylum and Subsidiary Protection] (Spain)

Migration Act 1958 (Cth)

Refugees Act 130 of 1998 (South Africa)

Utlänningslag (2005:716) [Aliens Act (2005:716)] (Sweden)

D Treaties/Declarations

Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

Declaration on the Elimination of Violence against Women GA Res 48/104, UN Doc A/Res/48/104 (20 December 1993)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 10 December 1999, 2131 UNTS 83 (entered into force 22 December 2000)

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

E Other

Canadian Immigration and Refugee Board, Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (March 1993, updated November 1996)

Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 19: Violence against women, 11th sess, UN Doc A/47/38 (1992)

Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 32: Gender-related dimensions of refugee status, asylum, nationality and statelessness of women, UN Doc CEDAW/C/GC/32 (2014)

Department of Immigration & Multicultural Affairs, Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers (July 1996)

Directive 2011/95/EU of the European Parliament and of the Council [2011] OJ L 337/9

Executive Office for Immigration Review, Department of Justice and Department of Homeland Security, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear, EOIR Docket No. 18-0002, A.G. Order No. 4714-2020 (15 June 2020) < https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-12575.pdf>

Home Office, Gender issues in the asylum claim (adopted in March 2004, revised in April 2018)

International Rescue Committee, ‘IRC data shows an increase in reports of gender-based violence across Latin America’ (Press Release, June 9 2020) <https://www.rescue.org/press-release/irc-data-shows-increase-reports-gender-based-violence-across-latin-america>

Mathema, Silva, ‘They are (Still) Refugees: People Continue to Flee Violence in Latin American Countries’, Centre for American Progress (online, June 1 2018) < https://www.americanprogress.org/issues/immigration/reports/2018/06/01/451474/still-refugees-people-continue-flee-violence-latin-american-countries/>

Miller, Nickole, ‘Trump’s new rules against asylum seekers are dire. They must be challenged’, The Washington Post (online, 20 June 2020) <https://www.washingtonpost.com/opinions/2020/06/19/we-cannot-let-trump-administration-turn-this-countrys-back-asylum-seekers/>

UNHCR Executive Committee, Refugee Women and International Protection: Conclusion No. 39 (XXXVI), UN Doc A/40/12/Add.1 (18 October 1985)

UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of 1951 Convention and/or its 1967 Protocol relating the Status of Refugees’, Doc No HCR/GIP/02/01 (7 May 2002)

UNHCR, Guidelines on International Protection: ‘Membership of a particular social group” within the context of Article 1A(2) of 1951 Convention and/or its 1967 Protocol relating the Status of Refugees’, Doc No HCR/GIP/02/02 (7 May 2002)

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, February 2019)

United States Immigration and Naturalisation Service, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (May 1995)

World Health Organisation, ‘Violence Against Women: A ‘Global Health Problem of Epidemic Proportions’’ (News Release, 20 June 2013) <https://www.who.int/mediacentre/news/releases/2013/violence_against_women_20130620/en/>

World Health Organisation, ‘Violence Against Women’ (Fact Sheet, 29 November 2017) <https://www.who.int/news-room/fact-sheets/detail/violence-against-women>


[1] World Health Organisation, ‘Violence Against Women: A ‘Global Health Problem of Epidemic Proportions’’ (News Release, 20 June 2013) <https://www.who.int/mediacentre/news/releases/2013/violence_against_women_20130620/en/>.

[2] World Health Organisation, ‘Violence Against Women’ (Fact Sheet, 29 November 2017) <https://www.who.int/news-room/fact-sheets/detail/violence-against-women>.

[3] Jessica Marsden, ‘Domestic Violence Asylum after Matter of L-R-(2014) 123 The Yale Law Journal 2512, 2514.

[4] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) read together with the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Convention’).

[5] Heaven Crawley, ‘[Engendering] International Refugee Protection: Are we there yet?’ in Bruce Burson and David Cantor (eds), Human Rights and the Refugee Definition: Comparative Legal Practice and Theory (Brill, 2016) 322, 323.

[6] Melanie Randall, ‘Refugee Law and State Accountability for Violence Against Women: A Comparative Analysis of Legal Approaches to Recognising Asylum Claims Based On Gender Persecution’ (2002) 25 Harvard Women’s Law Journal 281, 305.

[7] See generally, Andrea Binder, ‘Gender and the “Membership in a Particular Social Group” Category of the 1951 Refugee Convention’ (2001) 10(2) Columbia Journal of Gender and Law 167.

[8] Crawley (n 5) 332-333.

[9] Convention (n 4) art 1A(2).

[10] Karen Musalo, ‘Personal Violence, Public Matter: Evolving Standards in Gender-Based Asylum Law’ (2014-2015) 36(2) Harvard International Law Review 45, 46.

[11] Binder (n 7) 169;

[12] Marsden (n 3) 2517; See further, Guy S. Goodwin Gill & Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 74-75.

[13] Ibid.

[14] See Heaven Crawley, Refugees and Gender: Law and Process (Jordan Publishing, 2001); Jacqueline Greatbach, ‘The Gender Difference: Feminist Critiques of Refugee Discourse’ (1989) 1(4) International Journal of Refugee Law 518; Audrey Macklin, ‘Refugee and the Imperative of Categories’ (1995) 17(2) Human Rights Quarterly 213.

[15] Crawley (n 5) 324.

[16] Hilary Charlesworth, ‘What are “Women’s International Human Rights?”’ in Rebecca Cook (ed), Human Rights of Women: National and International Perspectives (University of Pennsylvania Press, 1994) 58, 71.

[17] Binder (n 7) 170.

[18] Pamela Goldberg, ‘Where in the World Is There Safety For Me?: Women Fleeing Gender-Based Persecution’ in Julie Peters & Andrea Wolper (eds), Women’s Rights, Human Rights: International Feminist (Routledge, 1994) 345, 347.

[19] Binder (n 7) 170.

[20] Nahla Valji, Lee Anne de la Hunt & Helen Moffett, ‘Where are the women? Gender discrimination in refugee policies and practices’ (2003) 55 Agenda: Empowering Women for Gender Equity 61, 62.

[21] Crawley (n 5) 325.

[22] Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law & Policy 1985-2010’ (2010) 29(2) Refugee Survey Quarterly 21, 23; Crawley (n 5) 325.

[23] Crawley (n 5) 330;

[24] World Health Organisation (n 2).

[25] Marsden (n 3) 2516, 2519.

[26] Ibid.

[27] Rhonda Copelon, ‘Recognizing the Egregious in the Everyday: Domestic Violence as Torture’ (1994) 25 Columbia Human Rights Law Review 291, 305.

[28] Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) read together with Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 10 December 1999, 2131 UNTS 83 (entered into force 22 December 2000) (‘CEDAW’).

[29] Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 19: Violence against women, 11th sess, UN Doc A/47/38 (1992) [6].

[30] Ibid [9].

[31] Declaration on the Elimination of Violence Against Women, GA Res 48/104, UN Doc A/RES/48/104 (20 December 1993) (‘DEVAW’).

[32] Crawley (n 5) 326.

[33] UNHCR Executive Committee, Refugee Women and International Protection: Conclusion No. 39 (XXXVI), UN Doc A/40/12/Add.1 (18 October 1985).

[34] UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of 1951 Convention and/or its 1967 Protocol relating the Status of Refugees’, Doc No HCR/GIP/02/01, 7 May 2002 (‘UNHCR Gender Guidelines’).

[35] Crawley (n 5) 326.

[36] Department of Immigration & Multicultural Affairs, Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers (July 1996).

[37] Canadian Immigration and Refugee Board, Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (March 1993, updated November 1996).

[38] Home Office, Gender issues in the asylum claim (adopted in March 2004, revised in April 2018).

[39] United States Immigration and Naturalisation Service, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (May 1995).

[40] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, February 2019) [51] (‘UNHCR Handbook’).

[41] Ibid; Guy S Goodwin-Gill & Jane McAdam (n 12) 91-92; Migration Act 1958 (Cth) s 5J; Directive 2011/95/EU of the European Parliament and of the Council [2011] OJ L 337/9 art 9.

[42] Ibid.

[43] Goodwin-Gill & McAdam (n 12) 81.

[44] UNHCR Handbook (n 40).

[45] Ibid [65].

[46] See Michael Heyman, ‘Domestic Violence and Asylum: Toward a Working Model of Affirmative State Obligations’ (2005) 17(4) International Journal of Refugee Law 729.

[47] Ibid.

[48] Canada (Attorney General) v Ward [1993] 2 SCR 689 (‘Ward’).

[49] Ward has been cited by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 and the UK House of Lords in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Shah [1999] UKHL 20; [1999] 2 AC 629.

[50] Ward 713.

[51] Ibid 724.

[52] Ibid 724-725.

[53] Ibid 724.

[54] Ward 724.

[55] Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Shah [1999] UKHL 20; [1999] 2 WLR 1015 (‘Islam; ex parte Shah’).

[56] Islam; ex parte Shah 1034-1035 (Lord Hoffman).

[57] Ibid 1025-1026 (Lord Steyn).

[58] Ibid.

[59] Ibid.

[60] Pia Zambelli, ‘Knowing Persecution When We See It: Non-State Actors and the Measure of State Protection’ (2020) 32(1) International Journal of Refugee Law 28, 31.

[61] Zambelli (n 60) 33, 52.

[62] Ibid 52.

[63] Ibid 34.

[64] Ibid 36.

[65] Constance Macintosh, ‘Domestic Violence and Gender-Based Persecution: How Refugee Adjudicators Judge Women Seeking Refuge from Spousal Violence – and Why Reform is Needed’ (2009) 26 Refuge 147, 162.

[66] Zambelli (n 60) 36; Heyman (n 46).

[67] Ibid 40.

[68] Ibid.

[69] Ibid 43.

[70] Heyman (n 46) 742-743.

[71] CEDAW art 2(e); DEVAW art 4(c).

[72] DEVAW art 5(i).

[73] Zambelli (n 60) 43; Heyman (n 46) 742-743.

[74] Zambelli (n 60) 44.

[75] Convention (n 4) art 1A(2).

[76] See Binder (n 7).

[77] UNHCR, Guidelines on International Protection: ‘Membership of a particular social group” within the context of Article 1A(2) of 1951 Convention and/or its 1967 Protocol relating the Status of Refugees’, Doc No HCR/GIP/02/02, 7 May 2002 (‘UNHCR Social Group Guidelines’) [20]-[23]; UNHCR Gender Guidelines (n 34) [20]-[21]; .

[78] Islam; ex parte Shah 1040.

[79] Ibid.

[80] Michelle Foster, ‘Why we are not there yet: the particular challenge of ‘particular social group’’ in Efrat Arbel, Jenni Millbank, Catherine Dauvergne (eds), Gender in Refugee Law: From the Margins to the Centre (Routledge, 2014) 17, 18.

[81] See Breanna Cary, ‘Differing Interpretations of the Membership in a Particular Social Group Category and Their Effects on Refugees’ (2016) 41(2) Oklahoma City University Law Review 241.

[82] UNHCR Social Group Guidelines (n 77) [15]; Foster (n 80) 19.

[83] UNHCR Social Group Guidelines (n 77) [18]-[19]; Foster (n 80) 19.

[84] UNHCR Social Group Guidelines (n 77) [14]; Foster (n 80) 19.

[85] UNHCR Social Group Guidelines (n 77) [17]; Foster (n 80) 20.

[86] Re Acosta 19 I. & N. Dec. 211 (BIA, 1985) (‘Re Acosta’).

[87] Foster (n 80) 20.

[88] Re Acosta 233.

[89] Ibid 233.

[90] Ward 739.

[91] Ibid.

[92] Islam; ex parte Shah 1026.

[93] Ibid 1031-1032, 1034; Guy S Goodwin-Gill, ‘Cases and Comments: Judicial Reasoning and ‘Social Group’ after Islam and Shah’ (1999) 11 International Journal of Refugee Law 537.

[94] Islam; ex parte Shah 1031-1032, 1034.

[95] Islam; ex parte Shah 1031-1032, 1034..

[96] Ibid 1019, 1033, 1038.

[97] Foster (n 80) 21.

[98] Applicant A and Another v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225.

[99] Ibid 241 (Dawson J).

[100] Ibid.

[101] Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 (‘Applicant S’).

[102] Ibid 400.

[103] Applicant S 397-398.

[104] Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 (‘Khawar’).

[105] Khawar [32] (Gleeson CJ).

[106] Ibid [35] (Gleeson CJ).

[107] Ibid [83] (McHugh J and Gummow J).

[108] Foster (n 80) 28.

[109] Ibid 29.

[110] Khawar [81] (McHugh J & Gummow J).

[111] Ibid [129] (Kirby J).

[112] UNHCR Social Group Guidelines (n 77) [14]; Foster (n 80) 31.

[113] Foster (n 80) 31.

[114] Kante v Holder, 2011 US App LEXIS 743 (6th Cir, 2011) (‘Kante’).

[115] See In re R-A-, 22 I. & N. Dec. 906 (A.G. 2001).

[116] Kante [12].

[117] Ibid [26]-[27].

[118] Karen Musalo, ‘Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action’ (2007) 14(2) Virginia Journal of Social Policy & the Law 119, 132.

[119] Melanie Randall, ‘Particularised Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognise Gender and the Legal Reception of Gender Persecution Claims in Canada, the United Kingdom, and the United States’ (2015) 23(4) American University Journal of Gender, Social Policy & the Law 529, 563; See also Niang v. Gonzales, [2005] USCA10 265; 422 F.3d 1187, 1199 (10th Cir. 2005) 10 ("There may be understandable concern in using gender as a group-defining characteristic. One may be reluctant to permit, for example, half a nation's residents to obtain asylum on the ground that women are persecuted there.").

[120] Musalo (n 118) 133.

[121] Randall (n 119) 564.

[122] See generally Theresa Vogel, ‘Critiquing Matter of A-B-: An Uncertain Future in Asylum Proceedings for Women Fleeing Intimate Partner Violence’ 52(2) University of Michigan Journal of Law Reform 343.

[123] Vogel (n 122). See also Blaine Bookey, ‘Domestic Violence as a Basis for Asylum: An Analysis of 206 Case Outcomes in the United States from 1994 to 2012’ (2013) 24 Hastings Women’s Law Journal 107, 121.

[124] In re C-A-, 23I. & N. Dec. 951 (B.I.A. 2006); Michelle Foster, ‘The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential Developments relating to ‘Membership of a Particular Social Group’ (Legal and Protection Policy Series, UNHCR, August 2012) 27-33.

[125] UNHCR Social Group Guidelines (n 77) [11].

[126] Ibid.

[127] In re C-A-, 23I. & N. Dec. 951 (B.I.A. 2006); Foster (n 80) 33.

[128] Executive Office for Immigration Review, Department of Justice and Department of Homeland Security, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear, EOIR Docket No. 18-0002, A.G. Order No. 4714-2020 (15 June 2020) < https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-12575.pdf> (‘US Proposed Regulations).

[129] Nickole Miller, ‘Trump’s new rules against asylum seekers are dire. They must be challenged’, The Washington Post (online, 20 June 2020) <https://www.washingtonpost.com/opinions/2020/06/19/we-cannot-let-trump-administration-turn-this-countrys-back-asylum-seekers/>.

[130] US Proposed Regulations (n 128) 53-54.

[131] Ibid 54-55.

[132] Ibid 63-64.

[133] Silva Mathema, ‘They are (Still) Refugees: People Continue to Flee Violence in Latin American Countries’, Centre for American Progress (online, June 1 2018) < https://www.americanprogress.org/issues/immigration/reports/2018/06/01/451474/still-refugees-people-continue-flee-violence-latin-american-countries/>.

[134] International Rescue Committee, ‘IRC data shows an increase in reports of gender-based violence across Latin America’ (Press Release, June 9 2020) <https://www.rescue.org/press-release/irc-data-shows-increase-reports-gender-based-violence-across-latin-america>.

[135] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) arts 26, 31.

[136] UNHCR Gender Guidelines (n 34) [30]; Canadian Immigration and Refugee Board, Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (March 1993, updated November 1996) section III; Department of Immigration & Multicultural Affairs, Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers [4.33]; Home Office, Gender issues in the asylum claim (adopted in March 2004, revised in April 2018) 18.

[137] See Ward.

[138] Foster (n 80) 37.

[139] Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria [Law 12/2009 of 30 October, Regulating the Right of Asylum and Subsidiary Protection] (Spain) art 7.

[140] Refugees Act 130 of 1998 (South Africa) s 1 (Definition of ‘social group’).

[141] Utlänningslag (2005:716) [Aliens Act (2005:716)] (Sweden) ch 4, s 1.

[142] See Randall (n 119) 566-569; Mattie Stevens, ‘Reorganising Gender-Specific Persecution: A Proposal to Add Gender as a Sixth Refugee Category’ (1993) 3(1) Cornell Journal of Law and Public Policy 179.

[143] Binder (n 7) 193.

[144] Randall (n 119) 568.

[145] Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 32: Gender-related dimensions of refugee status, asylum, nationality and statelessness of women, UN Doc CEDAW/C/GC/32 (2014).

[146] Ibid [13], [30], [38].

[147] Stevens (n 142) 215.

[148] UNHCR Gender Guidelines (n 34) [6].

[149] Ibid.

[150] Kate Jastram & Sayoni Maitra, ‘Matter of A-B- One Year Later: Winning Back Gender-Based Asylum Through Litigation and Legislation’ (2020) 18 Santa Clara Journal of International Law 48, 89-90.

[151] Randall (n 119) 571.

[152] Sherene Razack, ‘Domestic Violence as Gender Persecution: Policing the Borders of Nation, Race, and Gender’ (1995) 8 Canadian Journal of Women & Law 45, 47.

[153] Foster (n 80) 17.


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