MIMA v Khawar & Ors S128/2001 [2001] HCATrans 572 (13 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S128 of 2001

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

NAIMA KHAWAR

First Respondent

MEHR-un-NISA KHAWAR

Second Respondent

SANA KHAWAR

Third Respondent

MUHAMMAD AHMED SAEED

Fourth Respondent

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 NOVEMBER 2001, AT 10.18 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC: I appear with MR J.D. SMITH and MS M.N. ALLARS for the appellant. (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC: I appear with MS S.E. PRITCHARD for the respondents, if the Court pleases. (instructed by Coelho & Coelho)

GLEESON CJ: Yes, Mr Williams.

MR WILLIAMS: The appeal raises two questions: first, where the State fails to provide protection against harm feared from private individuals for non-convention reasons, whether that failure is capable by itself of constituting persecution for a Convention reason; secondly, where the State fails to provide protection against harm feared from private individuals for non-Convention reasons, whether that State failure is capable, together with the private harm feared, of constituting persecution for a Convention reason, particularly in light of the findings that the Tribunal made here.

At the heart of the appellant's submissions lies one central proposition, that persecution and protection are distinct concepts in the Convention definition of a refugee, just as it is impermissible to use the concept of persecution when seeking to define a particular social group, so it is impermissible to use the concept of protection when seeking to define persecution.

This is so for the same reason in each case, that is, to use elements from one concept in construing and applying another is to broaden, impermissibly, the text.

KIRBY J: But that does not seem to fit with what this Court has said repeatedly, and Justice McHugh in particular, that it is a composite concept. This is just absolutely wrong to interpret legislation or a convention incorporated by legislation word by word. You have to look at the whole composite concept.

MR WILLIAMS: We advocate a holistic approach, but the word - - -

KIRBY J: It does not sound like it. It sounds as though you are snipping and cutting and pasting and looking at things separately.

MR WILLIAMS: To the contrary, we submit that, with respect, that is the approach that has been taken in the court below, to take part of one concept from within the definition and use it when construing another concept within the definition, rather than reading the definition as a whole.

KIRBY J: But the fact that the definition contains, in it its closing part, that the person who claims to be a refugee is unable or unwilling to return to the country of nationality because the State there is not able or willing to protect them, must give some colour to the whole concept of the Convention reason, it would seem, that you have to look at it as a whole, and that appears to, as it were, flow back into the meaning of the reason and the well-grounded fear.

MR WILLIAMS: We have no difficulty with the notion of reading it holistically and of giving some colour to the earlier terms, however, if it involves taking concepts from the notion of protection and applying them to the notion of persecution, our submission is that that falls into the same kind of error identified in Applicant A, that of conflating the concepts and weakening, impermissibly, the cumulative requirements in the Convention.

KIRBY J: You will do so in your own time but it seems to me that Justice Hill reached his conclusion, as I understand it, contrary to what he would have done, had he felt free, because he thought Applicant A stood in the way. It seems as though he was flowing towards a conclusion read Shah or Islam and said, "I cannot follow that path because Applicant A stands in the way." I do not quite understand, at the moment, how it does but no doubt you will have to come to that because that seems to be the key to his Honour's reasoning.

MR WILLIAMS Yes, we will come to it but, in short, our contention is that the approach of this Court in Applicant A and in Ibrahim is one that involves a recognition of the confined purposes of the Convention. The purpose is stated very broadly in the preamble and opening words but confined by the text and both of those cases recognise the need to give primacy to the text over the very broadly stated objectives and in that respect we submit that Justice Hill was right to construe Applicant A in the way that his Honour did. We submit a departure from Applicant A or the approach in Applicant A is apparent both in the approach of the majority in the court below and also in the two decisions of the House of Lords on which our learned friends rely, Horvath and Islam.

GLEESON CJ: Just to relate this to the facts of this case, Mr Williams, do I understand from the supplementary submission that we got recently and the withdrawal of paragraphs 53 to 65 that it is common ground that if the majority in the Full Court of the Federal Court and Justice Branson were right, then the Tribunal will need to look again, or perhaps look for the first time - it does not matter which - at the question of whether there is evidence that warrants a conclusion that there is something systematic and State-based in the response that the police showed to complaints made by Mr Basten's client.

MR WILLIAMS: If the majority in the court below and Justice Branson are right in their construction of the Convention on the first issue, that is that the failure of the State, by itself, can constitute persecution, then that result would follow. In respect of the second issue, there are findings of the Tribunal that, we submit, have to be taken into account. If I might turn then to the first issue - - -

KIRBY J: Just so that I will understand where we are going, is it central to your thesis, and it does seem to have been adopted in the list of principles of Justice Hill, that omission by a State to act, even to act to protect fundamental dignity and rights that we would take for granted in Australia, can never of itself amount to persecution. Persecution, as a concept, always involves active action by the State. Is that at the heart of your argument?

MR WILLIAMS: Yes, your Honour. Persecution involves - and the mere failure to provide protection in circumstances where absent the intervention of private individuals, the claimant does not fear harm, is not of itself persecution.

McHUGH J: But the question of persecution in this case has to be looked at in a much broader context, has it not, than the question of assaults. Does one not have to determine whether or not there are other avenues open to the applicant in the society in which she lives, or lived, which would overcome some of the problems to which she refers? Look at the situation in Australia. I do not know what the situation is today, but certainly it is fairly well documented that not so very long ago police did not give battered wives in Australia the protection which many would have thought they deserved. Arguably, that did not amount to persecution because in Australian society they could leave home, make a new life and they suffer no social stigma and the problem would be avoided in that way.

Now, I do not know what the evidence is in this particular case, but perhaps in Pakistani society a woman cannot do that and retain her dignity. But if you can, maybe the whole question of persecution has to be looked at. I mean if she can leave home and go down the street and her husband is not going to be pursuing her and the State is not going to be doing anything, she just gets on and leads another life. Arguably, there is no persecution in that context, but what if she cannot realistically, within Pakistani society, enjoy a reasonable and dignified life? Then maybe it does constitute persecution, if the State fails to intervene.

MR WILLIAMS: The issues that your Honour raises go first to the question of possible internal sanctuary, and there are not findings made by the Tribunal in relation to that issue in the present case. Our submission would be more widely that as a matter of construction of the Convention, the term "persecution" itself does not import a failure of State protection, neither as a matter of the ordinary language of the word "persecution", nor as a matter of the construction of the Convention.

McHUGH J: But when you say "a failure", you use a term which is very ambiguous. Do you mean by "failure" a mere omission or do you include in the term a tacit acceptance of the conduct that is complained of?

MR WILLIAMS: By "failure", we could go for present purposes as far as tacit acceptance but falls short of active incitement.

McHUGH J: Take the situation in Germany in 1938 when Goebbels and others were turning on and off attacks on Jews as suited the international political scene. They just allowed people - perhaps some people as members of the Nazi Party encouraged persecution of Jews. The State just stood by, but if they wanted to, as they did on a couple of occasions, they stopped it for international reasons. Why is that not persecution by Germany in those circumstances?

MR WILLIAMS: The factual difference in the example that your Honour posits is that the State actively encouraged persecution, the State incited - - -

McHUGH J: I am not sure that at high levels, with the possible exception of Goebbels, that they were actually going out of their way to encourage it, but, I mean, there was just this general dislike of Jews among members of the Nazi Party, just ordinary members, and they were involved in these acts against the Jewish people, but the government just stood by because there was really in accord with the policy of the government.

GUMMOW J: Anyhow, the German State had been systematically and in an accelerating fashion stripping civil rights from these people. It got worse and worse as the years went on, but there was an - - -

KIRBY J: It started from 1933. It did not start in 1938. It did not start with the Nuremberg laws in 36, I think it was. If you read the book by Klemperer, "To the Bitter End", which is the story of a Jew in Germany, a daily diary, you see that it started immediately Hitler came to power.

GUMMOW J: Yes, that is what I had in mind, that exact example.

MR WILLIAMS: The difficulty with any example involving - - -

GUMMOW J: And that is not this case, that is the trouble. So, analogies are minefields in this area, I think.

MR WILLIAMS: Particularly examples involving Germany because they involve a knowledge of - - -

GUMMOW J: Well, an assumed knowledge, which was often incomplete, though.

MR WILLIAMS: Yes, and also a knowledge of the state of persecution at a particular time and it is important to remember exactly what the State policy was at the particular time. In our submission, there is a critical point of distinction.

GUMMOW J: Assume that the husband's conduct here was condoned and encouraged by his religion, and assume that religion was the State religion of this particular country. How does that impact on this definition? Is he being persecuted for his religious beliefs if the police come along and stop him doing this activity?

MR WILLIAMS: We would say, no, your Honour. We would say, no. Our starting point in that analysis is to start with the meaning of the term "persecution".

GUMMOW J: Yes.

KIRBY J: You get some support for your submission from the definition in the new Macquarie Dictionary, which recently came out. It has three definitions. The first is "to pursue with harassing or oppressive treatment". The second is "to oppress with injury or punishment" and the third is "to annoy by persistent attentions, importunities, or the like". So, all of those are active concepts and, yet, Mr Basten points to a whole body of jurisprudence in many countries, including the United Kingdom, which suggest that in this context, persecution has extended into notions of passive refusal to do what a civilised State should do and would do. So, this is the problem. You say, "Look at the text", but when courts in many countries have looked at the text, in the United Kingdom, in Canada and the United States, they have not confined the notion of persecution to the popular meaning of active oppression and actions and harassments.

MR WILLIAMS: If your Honour is referring to the body of material to which Mr Basten refers as constituting a body of State practice, we would say that it falls short of that for the reasons that your Honour Justice Gummow gave in Ibrahim. There is no sufficient consistency in the construction of the Convention to amount to State practice, but we certainly rely upon the dictionary definition, the other to which your Honour Justice Kirby referred in Chen Shi Hai, the Australian Oxford Dictionary, and the ordinary meaning of the word - - -

GUMMOW J: But that involves the injection of some western cultural values, does it not? We use the word "civilised". That is just a wrapped-up expression for some values which come from our culture, is it not?

MR WILLIAMS: There is a degree to which western values underlie the Convention.

GUMMOW J: Absolutely at the time.

KIRBY J: I am perhaps guilty of using the word "civilised", but I was using it in the sense that the Convention is to be seen in its context in international law. International law includes a whole body of Conventions, including the Conventions in relation to the rights of women, that provide the civilised or international context of the Convention and therefore, I would have thought, the context in which we read the Convention. It is one of many instruments of international law.

MR WILLIAMS: It may be part of a wider body of international law but, as the analysis of the majority in Applicant A and the analysis of your Honour Justice Gummow in Ibrahim shows, the wider principles of international law and the general humanitarian purposes that underlie a number of the Conventions to which your Honour Justice Kirby refers have not been implemented in the Refugees Convention. It is a deliberately limited compact - - -

KIRBY J: That is what you are going to have to make good as far as I am concerned. I dissented in Applicant A, but if there is a holding there that supports the view that Justice Hill takes, then I must conform to it. So you are going to have to make that good because I do not see it at the moment.

MR WILLIAMS: Perhaps if I might turn to that task first by going to the judgment of Justice Lindgren on the first issue, then dealing with Horvath and returning to Applicant A in the context of the second issue. The critical passage in the judgment of Justice Lindgren commences at page 176 of the appeal book.

GUMMOW J: Which paragraph?

MR WILLIAMS: Paragraph 120, I am sorry, your Honour.

GUMMOW J: The decision is reported in [2000] FCA 1130; 101 FCR 501.

MR WILLIAMS: Yes, your Honour. In paragraph 120 Justice Lindgren formulates what appears to be a test from the decisions of this Court in the area, a test which does not include an element of "for reasons of", although that is a matter discussed elsewhere in his Honour's reasons, but in paragraph 121 his Honour accepts the proposition:

that "persecution" can take the form of a discriminatory withholding by the state from the members of a particular social group of goods or services that the state provides to other persons.

In paragraph 122 his Honour takes the crucial further step of concluding:

If a state had a policy of not making available to the members of a particular social group protection by the police that was available to other members . . . could amount to -

persecution. Then in paragraphs 123 and particularly 124 his Honour applies that reasoning to make the critical finding on the first issue, but then in paragraph 126 his Honour observes that if a discriminatory absence of protection is based on:

a pervasive view of the authorities, whatever its own explanation and genesis, that women deserve less fundamental rights and freedoms than others -

the purposes of the Convention would support their protection as refugees. Then, in paragraphs 128 and 129, his Honour concludes that the Tribunal erred by failing to consider whether there had been a discriminatory withholding of protection by the State organs charged with a protective role. The first question that this raises is the meaning of "persecution" in the Convention definition. Our starting point for that consideration is the ordinary meaning of the word, read in its context - a meaning to which your Honour Justice Kirby has referred the Court, from the Macquarie Dictionary. All those meanings, in our submission, involve activity, in the sense of pursuit, harassment, oppression, persistent attention, and all involve an element of harm. None of them requires, or even alludes to, activity or inactivity on the part of the State.

GLEESON CJ: Is the search for the role of the State in what is happening to the respondent because it is not being suggested that she is being persecuted by her husband, on a Convention ground?

MR WILLIAMS: The findings of the Tribunal are clear that none of the suggested Convention grounds form any part of the motivation for the husband's persecution.

McHUGH J: The Convention does not cover private persecution, does it? Is that not the accepted theory? You have to have government involvement.

MR WILLIAMS: That is, we submit, the accepted theory.

GLEESON CJ: Suppose you switch the scene to the Victorian goldfields in the second half of the nineteenth century, and you find that Chinese miners are being systematically dealt with by other miners, in a manner that subjects them to adverse discrimination, and perhaps even physical violence from time to time. Now, before we turn to look at what the police are doing about that, or what the government is doing about that, is the proposition that you cannot say that the miners are persecuting those Chinese for reasons of race? Is that the first step?

MR WILLIAMS: No, your Honour. In the example that your Honour posits the persecution is harm and it is directed for reasons of race.

GLEESON CJ: What is the difference between private persecution and public persecution? You have a group of gold miners on a goldfield who beat up Chinese when they see them.

MR WILLIAMS: That is private persecution for a Convention reason.

GLEESON CJ: I do not know why you add the word "private". It is persecution for a Convention reason, is it?

MR WILLIAMS: Yes, your Honour, we accept that.

GLEESON CJ: Right. You could take it further, if necessary, if you could demonstrate that there was an official policy of turning a blind eye to that kind of activity because people wanted to get Chinese out of the goldfields and out of Australia.

MR WILLIAMS: It would not, in our submission, be necessary to take that further step if the State were unable to protect or if this State protection were ineffective.

GLEESON CJ: But you need to take that extra step, do you, in this case because unless and until you take that extra step there is nothing more to it than a relatively small group of males, including but not limited to the husband, behaving in a certain fashion towards an individual female?

MR WILLIAMS: Yes, your Honour, and not for a Convention reason.

GLEESON CJ: When you say "not for a Convention reason", if the allegations are true, those males are certainly behaving towards her in a manner to which they would not behave towards another male.

MR WILLIAMS: That is so, your Honour, but the motivation is not, as the Tribunal found, connected to any Convention group. The persecutor in the present case does not persecute women generally, does not commit acts of violence against women generally. The persecutor attacks his wife and attacks his wife, as the Tribunal found, for personal reasons unconnected to membership of a group.

GLEESON CJ: I perhaps misstated the facts when I limited the alleged possible persecutors to people who were males. There is evidence, is there not, according to the allegations that have been made, of members of a family group, including at least one female, who are behaving in a particular way?

MR WILLIAMS: Yes, your Honour.

GLEESON CJ: But that cannot amount to persecution, you say?

MR WILLIAMS: Not on the findings that the Tribunal made because the motivation was not to persecute the respondent for reasons of her membership of a Convention group. The motivation was personal.

GLEESON CJ: So then, if the judgment of the majority in the Full Court is correct, you look at what the State is doing or not doing and your proposition is, is it, that mere inaction by the State in the face of this kind of conduct by that group of people towards this individual can never amount to persecution by the State?

MR WILLIAMS The qualification that your Honour adds "in the face of this persecution" really takes the issue to the second of the ways - - -

GLEESON CJ: No, I said "in the face of this conduct". In the face of the conduct of the members of the family towards this individual.

MR WILLIAMS That qualification really takes the issue to the second of the ways in which Justice Lindgren put it in the Full Court. The first way was "inaction by the State of itself, by itself, can be considered as persecution". The husband's violence, the family's threats of violence are just the occasion for an example of State persecution.

KIRBY J: This is Mr Basten's suggestion, we have to shift the focus from what is happening in the family to what the State is doing or not doing.

MR WILLIAMS That is so.

GLEESON CJ: Because, by hypothesis, what the family is doing cannot amount to persecution.

MR WILLIAMS Because of its motivation - its lack of convention and motivation.

GLEESON CJ: So it is either persecution by the State or nothing?

MR WILLIAMS That is the first of the ways in which Justice Lindgren put it in the Full Court, that the inaction by the State, by itself, could constitute persecution or, rather, the withholding of protection could, by itself, constitute persecution.

GLEESON CJ: And why can it not?

MR WILLIAMS Because inaction, by itself, is not persecution. It requires to fall within the ordinary meaning of the word "persecution". Some element of activity and harm is involved and the mere failure of the State to act, considered by itself, does not fall within that ordinary meaning.

GLEESON CJ: Inaction never takes place in isolation. If you have the power to stop somebody beating up somebody else, if you are an adult male and you see one small child beating up another small child, standing by and doing nothing might from one point of view be inaction and from another point of view it might be action, especially if you happen to be a school teacher patrolling a playground.

MR WILLIAMS We accept that, with respect, but in terms of the ordinary meaning of persecution something more is involved.

GLEESON CJ: I am just talking about the ordinary meaning of the word "inaction".

MR WILLIAMS Yes. It is a word that has shades of meaning.

KIRBY J: But if you asked yourself, putting down Klemperer's book, "How did the Nazis persecute the Jews, the Gipsies and others in Germany?", the answer would be, "They had radio broadcasts, they had big meetings, they had bashing up and so on", but it would also include that they did not give the protection - they omitted. It was both positive and negative action and omission. So, I just do not think the strict dichotomy you are suggesting is really compatible with the history of persecution, it is both. It can be both.

MR WILLIAMS: It is difficult in the example that your Honour posits to separate out one element from a thoroughgoing campaign of persecution that, on any view, was active, and say, if nothing else had happened, that element there might or might not have been persecution.

GLEESON CJ: To describe conduct as inaction makes an assumption about the presence or absence of responsibilities. You might describe as inaction the conduct of a stranger who does not intervene in a fight between two little children, but if you are a school teacher with responsibilities of protection for all the children in a playground and you do not intervene in an episode of bullying, your conduct is not mere inaction, is it?

MR WILLIAMS: It is inaction in circumstances of particular responsibility to act.

McHUGH J: The discrimination here has little to do, in one sense, with the question of violence, has it? That happens to be the factum upon which the persecution operates. The real persecution here is the discrimination by the State. The State discriminates against women by refusing to give - well by not giving women their protection, and it would not matter whether it was employment or violence or anything else. So it does not seem to me to lead anywhere just to talk about omission. The persecution here is the discrimination. These women are discriminated against because the State will not do anything to help them, or does not do anything to help them, so they are discriminated against. Is not that the persecution?

MR WILLIAMS: In our submission, no. The persecution, if one asks, "What does the respondent fear?" - the question might be a compound one, but the first part would unquestionably be the violence of her husband and his family.

KIRBY J: That was the answer she gave to the Tribunal and they recorded that, but if you dug a little deeper, she could have said, "I fear that I can go to the police station once, twice, thrice and four times, and they will not give me any protection. I am completely vulnerable and I am greatly concerned because of what I read about stove injuries and so on, that I am just bereft of any protection from the State, and that this is a form of persecution." True, it is not propaganda or even law. It is withdrawal of law.

MR WILLIAMS: Our first proposition is that that withdrawal of itself without the harm feared from the husband - and this is Justice Lindgren's first proposition - does not of itself constitute persecution because it does not - - -

KIRBY J: You have conceded though, I think, that withdrawal or omission can be persecution but only in the context of positive action, is that correct, in answer to my case concerning the German positive and negative aspects of persecution?

MR WILLIAMS: If it went as far as incitement, which resulted in private individuals directing harm at members of the group for reasons of the group membership, then that would constitute Convention-based persecution.

KIRBY J: Let me get it completely clear. That would, the incitement, on any view, amount to persecution, but if there is incitement and there is also a withdrawal of State protection for a social group, then you concede that the withdrawal of State protection, in that context, can be an aspect of persecution.

MR WILLIAMS: In that situation the persecution is the harm feared from the individuals.

KIRBY J: Yes, but the harm can be feared by reason of not only the wild broadcast and the unjust law, but also that there is no protection from the authorities.

MR WILLIAMS: The active incitement of the authorities can constitute - - -

KIRBY J: Yes, there is no debate about that. That is undoubtedly persecution. Do you accept, for the Minister, that the withdrawal of State protection, in that context, can also be an aspect of persecution?

MR WILLIAMS: If your Honour is positing the question short of active incitement, no.

KIRBY J: But in the context of active incitement? I do want to get the answer to this question.

MR WILLIAMS: In the context of active incitement, yes, because it then forms - - -

KIRBY J: You say it is a sine qua non. It is absolutely imperative, in every case, that there must be within the dictionary definitions the position act. I think this is Justice Hill's view too.

MR WILLIAMS: Yes.

KIRBY J: That omission, on its own, is not enough, but in the context of commission, omission can be an aspect of persecution as well.

MR WILLIAMS: Because the fear and - the Convention goes to the fear rather than the actual persecution. The fear, in that situation, is of harm incited by the State, individuals acting, as it were, in concert with the State, having been induced by the State to act.

GLEESON CJ: Mr Williams, I would like to understand a little better than I do the difference between the two ways Justice Lindgren had of looking at the case. Could you just explain that?

MR WILLIAMS: The first way in which his Honour put it is that to which I have taken the Court. The second way - - -

GLEESON CJ: This is paragraph 130?

MR WILLIAMS: Yes, your Honour, and developed particularly to its conclusion in paragraph 137.

GLEESON CJ: What is the difference between the form of persecution described in paragraph 123, and the form of persecution described in the first sentence of paragraph 130?

MR WILLIAMS: The first focuses exclusively on the State.

GLEESON CJ: No, it does not. The conduct of the State is withholding protection against violence. The violence is in there whichever way you look at it.

MR WILLIAMS: His Honour develops that slightly in paragraph 124, your Honour.

GLEESON CJ: "Failure to protect", failure to protect against what?

MR WILLIAMS: Failure to protect against violence, but his Honour's analysis endeavours to separate the two approaches out.

GLEESON CJ: Can you just explain the difference.

MR WILLIAMS: Your Honour, we apprehended the difference may not be as sharp as it appears to be in his Honour's reasons. His Honour has identified the two kinds of persecution separately. We are not sure that there is a valid distinction between the first way that his Honour puts it, the conduct of the State alone, with the violence of the husband merely being the occasion for the failure of State protection and the first of the alternatives in the second way his Honour puts it, that is the combined violence of the husband and the failure of the State.

There is a conceptual difference, if I might describe it as the third way, where the perpetrator of the violence has knowledge of the State failure and acts with that knowledge and would not have acted - well, I do not want to use the term "but for" - but is motivated in part by the knowledge that the State will fail to protect. But, for our part, we are not sure that there is a conceptual difference between the first way in which his Honour puts it and the first of the two alternatives.

McHUGH J: I may have misunderstood what his Honour said, but I thought that the key was in the expression, "routinely withheld", so that at paragraph 123 he was really referring to a positive policy of the authorities in Pakistan to "routinely" withhold, whereas in the second alternative at 130 he was dealing with pure omission.

MR WILLIAMS: We have not read the judgment in that way. It may be susceptible of that interpretation, but we are not sure for present purposes that - - -

McHUGH J: In other words, I read the first statement at 123 as, in effect, really, authorities are conscious of what is going on, but they routinely withhold protection, and, in the second, it does not matter, you have this husband violence and there is just a simple lack of State protection. You just do not do anything, full stop, whether they are conscious of it or not.

MR WILLIAMS: Yes, the judgment may be susceptible in that reading.

GUMMOW J: Now, where are we left with the factual basis for all of this, namely, where are we left with any knowledge of what the law in Pakistan is about these domestic violence matters? Do we have any knowledge of that? We just have some assumptions, do we? I understand Pakistan to some extent is a federal State, for starters. We do not know what province all this is happening in, do we?

MR WILLIAMS: There was limited evidence before the Tribunal on that matter.

McHUGH J: It really has to stand or fall, has it not, on the submission from Peter Bollard & Associates at page 81 and following?

MR WILLIAMS: That is so, your Honour. The Tribunal did not make any express findings in respect of that material. Your Honours, we apprehend that much of Justice Lindgren's first approach is based upon a reading of the decision of this Court in Chen. In our submission, Chen is a different case because it involved the implementation of a State policy that operated, of itself, to oppress members of the particular social group by denying them access to food, shelter, medical treatment and education for children. But such a policy does operate of its own force to have that oppressive effect without the necessity for actions by other individuals.

GLEESON CJ: I am not suggesting it is this case, because I do not know enough about the facts and the facts, as you say, were not found in some respects, but suppose you had a State policy of inactivity involving a conscious decision not to become involved in domestic disputes where the foundation of that policy was a belief, perhaps a religious belief, as to the role of the head of the family. In other words, does the reason for the State policy matter?

MR WILLIAMS: Not when one is considering whether or not there is persecution.

GLEESON CJ: A possible reason for States not wanting their police to get involved in domestic disputes might simply be one of resources.

MR WILLIAMS: Yes.

GLEESON CJ: But there might be other reasons of the kind that I just mentioned. Are they relevant?

MR WILLIAMS: Not at the stage of considering whether or not there is persecution. Persecution focuses on the harm feared.

GUMMOW J: The persecution here seems to be persecution encouraged by religion, which page 85 makes clear. What significance do those cultural imperatives have on the questions that were involved here?

MR WILLIAMS: On the questions of construction of the Convention?

GUMMOW J: No, on the question of what the police do and do not do. The police may want to be regarded as good Muslims by their superiors and by their colleagues and by the public generally.

MR WILLIAMS: Those factors may well prove critical in determining the validity or acceptability in a Chen sense of the State policy or the reasons for the State inactivity, if that be found.

CALLINAN J: It seems to be more than that, though. There is a reference to the deliberate "Islamization of Pakistani society". It seems to be more than a toleration. The suggestion seems to be a deliberate policy of discrimination against women.

GLEESON CJ: The name of the country is, is it not, the Islamic Republic of Pakistan?

MR WILLIAMS: I believe so, your Honour, yes.

CALLINAN J: Well, where does that leave all women in Pakistan? Are all women in Pakistan either discriminated against or liable to be discriminated against, or all married women, perhaps?

MR WILLIAMS: It may be so that by reason of the State religion women are cognisable as a social group and that there is general discrimination against women.

CALLINAN J: It is a huge social group. All women - I do not know, perhaps all women in Islamic society in Pakistan are potential brides or wives, so they are all part of a social group. But it is half the country. What do you do about that?

MR WILLIAMS: Our submission, your Honour, is that that would operate through the question of causal nexus. We see no difficulty with the notion that a social group can be very large.

CALLINAN J: But half the population except for a few lucky ones whose husbands do not subscribe to the same discriminatory view, but there probably are not a lot of them.

MR WILLIAMS: We do not submit that the size of the group would make it incapable of being a Convention-based group, but the size would have this significance, that if the group is very large, then one has to consider the persecution fear and determine whether the persecution is feared for reasons of membership of the group, adopting the analysis of your Honour Justice McHugh in Applicant A. If the group is very large, then it is going to be much more difficult to show that the particular persecution is feared for reasons of membership of that group.

GUMMOW J: Is there any evidence of the extent to which the sharia is embodied now in Pakistan law?

MR WILLIAMS: The evidence, as I recall it, your Honour, went to show only that it was a proposed law.

GUMMOW J: Is there evidence of that?

MR WILLIAMS: I will have that turned up, your Honour. There are no findings by the Tribunal about it.

GUMMOW J: It is the usual problem in these cases.

GLEESON CJ: It would be very dangerous for us to make any assumptions about the role of women in Islam. Our combined knowledge of that subject would probably fit into a thimble.

MR WILLIAMS: We do not invite the Court to enter upon that, your Honour. At page 85, in answer to your Honour Justice Gummow's question - - -

GUMMOW J: That is talking about 1977 and 1984. Things have moved since 1984, I suspect.

MR WILLIAMS: The evidence, as I recall it - my friend will correct me if I am wrong - went no further than that. It was a proposed law at that time. The distinction that we seek to draw from the decision of the Court in Chen [2000] HCA 19; 201 CLR 293 turns upon the directness with which the persecution in question there operated upon the subject group. The relevant passage in the joint judgment commences at page 302. At paragraph 24 of the joint judgment there is a reference to the "common thread" and at paragraph 25 the joint judgment emphasises "conduct", "discriminatory conduct", conduct for a Convention reason. "Conduct" is a term that usually connotes activity.

GUMMOW J: What is meant by the phrase "Convention reason" - by reason of?

MR WILLIAMS: For reasons of race, religion - the five enumerated grounds.

KIRBY J: Both Applicant A and Chen concern the so-called one-child policy in China.

MR WILLIAMS: Yes.

KIRBY J: In this Court Applicant A held that the parents, the mother and father involved, could not claim protection of the Convention. In Chen it was held that a black child could. Would you remind me what the point of distinction of the Court was on that apparent difference?

MR WILLIAMS: In Chen the group was capable of definition without reference to the persecution. Chen, of course, was common ground that the conduct in question was persecution, but in Applicant A the Court held that it was impermissible to seek to define the group by reference to the persecution feared. In Chen the group was defined by reference to the existence of laws that discriminated directly against the members of the group.

KIRBY J: But there were laws that discriminated directly against parents in Applicant A, were there not?

McHUGH J: I do not think there were. I think it was done at a sort of executive level, was it not?

MR WILLIAMS: There were policies that discriminated against persons who took themselves outside the one-child policy, but there was that further step involved. The parents were capable of adhering to the policy, and if they did so, then they did not fear persecution. It was only if one took the further step of defining the group by reference to those who choose not to adhere to the policy that one could define a group which feared persecution for reasons of membership of the group.

GLEESON CJ: In the second-last sentence in paragraph 2 of the joint judgment in Chen, there is a finding of the Tribunal recorded and a reference to the fact that the finding was not in question in this Court.

MR WILLIAMS: Yes. So, although Chen did not determine the meaning of "persecution", there are observations in the joint judgment in relation to it. The central passage in Chen is in paragraphs 29 to 31, and our submission is that those passages focus upon the denial of access to essential services, denial of basic needs.

GUMMOW J: Well, it is something you were born with.

MR WILLIAMS: Yes.

KIRBY J: Why is not access to the law and the rule of law an essential need? The new provisions of the Act seem to indicate that the Parliament of Australia thinks they are.

MR WILLIAMS: The denial in question, in Chen, was one that operated directly of itself and without law to have the persecutory effect. We draw the distinction in the present case, from a denial of a service which, of itself, without the intervention of others, does not have a harmful effect capable of amounting to persecution.

GLEESON CJ: But what, if anything, do we know about the access that a woman in the respondent's position has to the law in Pakistan?

MR WILLIAMS: There are no findings by the Tribunal on that, your Honour.

KIRBY J: Well, there is only the fact that she went four times, and four times she was given the brush-off. I mean, you do not have to be too perceptive not to draw a certain inference from that. She even went with her brother-in-law, the brother of the alleged assailant.

MR WILLIAMS: It may be that a certain inference was available. The Tribunal did not enter upon the question.

GLEESON CJ: What would be the inference you would draw about what her position would have been if she had been rich enough to go to a lawyer?

MR WILLIAMS: The inference in that case may have been quite different. There were no findings about her ability to access the courts. There was some evidence about discrimination against women in Pakistani law, in the courts, as to the weight of their evidence and the like, but the evidence went no further than that.

GUMMOW J: But can they sue their husbands for assault?

MR WILLIAMS: One presumes so, your Honour.

GUMMOW J: Well, one does not know.

KIRBY J: Is that suggested to be a reason why the police do not take action in these cases, because there is a legal provision that puts a woman complainant at a disadvantage?

MR WILLIAMS: No, your Honour.

KIRBY J: There is a legal provision in respect of allegations of rape or adultery, is there not, that you have to have two women witnesses, is that correct or not? I have read that somewhere.

MR WILLIAMS: Yes, that is referred to in Islam and I think also in the evidence before the Tribunal, but again there are no findings about it.

GLEESON CJ: That is the reason this matter was sent back to the Tribunal, so that findings about these sorts of things could be made.

MR WILLIAMS: Yes, your Honour.

GUMMOW J: The sooner that is done the better.

MR WILLIAMS: The basis on which special leave was sought and granted was that the proper construction of the Convention did not give rise to further issues that the Tribunal was obliged to - - -

GLEESON CJ: Right. Well, behind that there must be the proposition, which must ultimately be your proposition, that whatever the Tribunal found about matters of that kind could not affect the outcome of this case.

MR WILLIAMS: That is so, your Honour, and we put that for two reasons, both deriving from the central proposition that persecution and protection are separate concepts in the Convention and that it is impermissible to use the reasons for an absence of State protection to colour one's finding or to elevate the nature of the persecution feared to being a Convention-based fear. Now, apart from Chen, we refer also to - - -

GUMMOW J: Well, wait a moment. The relief you seek is what, to reinstate Justice Branson, is it not?

MR WILLIAMS: No, your Honour, to reinstate the decision of the Tribunal, to set aside Justice Branson's orders.

KIRBY J: You want an order dismissing - - -

GUMMOW J: Yes, that is right, that the Tribunal be upheld.

MR WILLIAMS: Yes, your Honour. That view would follow - - -

GUMMOW J: And nobody hearing - no more evidence.

MR WILLIAMS: No, your Honour. That view would follow if our central proposition is correct, that there is a distinction between persecution and protection in the structure of the Convention and that it is impermissible to use one to colour the other. If we are wrong about that proposition, then we accept that the matter would need to go back.

GLEESON CJ: Sorry, say that again.

MR WILLIAMS: If we are wrong about that central proposition, if the absence of State protection, for example, is capable of amounting to persecution, first to the way as Justice Lindgren put it, then we accept that the matter would need to go back to the Tribunal.

GUMMOW J: Well, that is not any relief you seek in your notice of appeal.

MR WILLIAMS: No, your Honour. If we are wrong about that proposition, the appeal would be dismissed, the orders of Justice Branson as upheld by the Full Court would flow.

GLEESON CJ: Yes, thank you.

MR WILLIAMS Our submission is that decisions of this Court, which are quoted in paragraphs 23 and 24 of our submissions, have adopted meanings of the phrase "being persecuted" that are akin to its ordinary meaning. We refer in those submissions to Chan and if I might take the Court to the decision in Minister v Ibrahim (2000) ALJR 1556. There is a discussion in that decision by Justice McHugh who was dissenting in the result but not, as we apprehend it, on this issue, which summarises much of the material in relation to persecution. That discussion commences at paragraph [55] on page 1565.

KIRBY J: Which paragraph is it?

MR WILLIAMS Paragraph [55], your Honour. We rely, particularly, on the concluding words:

persecution always involves the notion of selective harassment or pursuit -

The judgment then discusses in the succeeding paragraphs other decisions in relation to persecution and quotes from your Honour Justice Gummow in Applicant A and in paragraph [61]:

Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it.

Your Honour Justice McHugh then applies that approach in paragraph [102] in formulating an approach for the Tribunal to follow, at least in the circumstances of a case such as that raised in Ibrahim. It is in the second half of paragraph [102]:

among the questions which the Tribunal should have asked were (a) what harm does the applicant fear on his return to Somalia? (b) is that fear well-founded? (c) why will the applicant be subjected to that harm?

Our submissions is that the focus is specifically upon the harm feared and that the terms of the judgment are inconsistent with a notion of persecution as being passive conduct withholding by the State.

The appellant accepts that the role of the state of nationality is central to the operation of the Refugees Convention, the purpose of which is to provide in the limited circumstances referred to in the definition, surrogate international protection where State protection is unavailable, however, the appellant contends that State protection, or the absence thereof, does not operate through the phrase "being persecuted" but rather through the later words of the definition.

The issue is discussed in the decision of the House of Lords in Horvath v Secretary of State [2000] UKHL 37; [2001] 1 AC 489. The narrow point that case decided is referred to in the headnote at the bottom of page 489 concerning the standard of police protection required of the country of origin of a claimant. On that narrow point and on the outcome of the appeal their Lordships were unanimous, however, there was a significant divergence of approach between Lord Lloyd, on the one hand, and the remainder of the House as to the construction of the term "persecution" in the Convention definition. The issue is identified at page 494 in the judgment of Lord Hope at about point F. The question is:

does the word "persecution" denote merely sufficiently severe ill-treatment, or does it denote sufficiently severe ill-treatment against which the state fails to afford protection?

His Lordship's analysis at page 495 starts at about point B by considering the purposes of the Convention, referring to the failure of State protection as being central to the whole system.

At page 497, at about point F, his Lordship accepts "that there are indeed two tests that require to be satisfied", but concludes that they are each "linked to each other" by the purposes of the Convention. Each test, as his Lordship held, is founded on the same principle. His Lordship concluded that State protection had a "part to play" in each.

CALLINAN J: What about if the absence of State protection stems from laziness or incompetence rather than from a deliberate - indeed, perhaps a deliberate but unspoken, policy? Let us say there is no, as a word, "malice", or no intention to withhold protection, it just is not provided because - well, for a number of reasons: laziness, incompetence, lack of interest, what happens then? Is that persecution?

MR WILLIAMS: If the failure went only to incompetence and was not part of either a policy or a practice of State authorities, then I apprehend it would be common ground that that would not introduce protection obligations, but there are no findings.

CALLINAN J: In effect, persecution has to be intentional? Does that not follow? It might be intentional withholding of protection, but there is an underlying intention to implement a policy?

MR WILLIAMS: There may be an intermediate position, your Honour, if there were simply a recognisable practice in the organs of government charged with responsibility for - - -

CALLINAN J: Practice involves intention, does it not?

MR WILLIAMS: It need not.

CALLINAN J: Can you give me an example of a practice that does not stem from or is not an implementation of an intention?

MR WILLIAMS: It could simply be a scarcity of resources leading, on a regular basis, to insufficient attention being given to crimes of this particular kind.

CALLINAN J: Has the Tribunal got to examine the economics of the country and see how the resources are to be, or have been, apportioned?

MR WILLIAMS: That would be one of the issues that would arise if the matter were to go to - - -

CALLINAN J: How could a Tribunal do that? It just seems to me to be totally unrealistic.

MR WILLIAMS: That is an issue that would arise for the Tribunal if it were to go back.

CALLINAN J: What, that it looks into the economy of the country and then apportions priorities?

MR WILLIAMS: There are certainly difficult issues. The question for the Tribunal would be whether there is a practice of the State founded upon discrimination against the group for the Convention reason.

CALLINAN J: I still cannot see how you can have persecution without some intention. I think it is totally unrealistic and impractical to expect the Tribunal to examine the economy of another country and to make judgments about the appropriate priorities in it.

MR WILLIAMS: On our approach, that issue would not arise, your Honour.

KIRBY J: This Court has said, has it not, that malice or intention is not an essential ingredient of persecution. That you can have persecutions through indifference and through complete lack of attention to your obligations. I think that has been said in a number of cases, has it not?

MR WILLIAMS: There is a passage that goes almost that far in Chen, your Honour.

CALLINAN J: What is the clearest example of that, of what Justice Kirby has put to you? What is the strongest example of it? You say there is something in Chen. Where do I find that? I may be wrong, but I thought a number of reasons have said something like that. I think Mr Basten might refer to them in his submissions.

MR WILLIAMS: Paragraph 33 of Chen is the passage in question. There is a passage in the judgment of your Honour Justice Kirby which takes the further step that your Honour referred to. Paragraph 33 goes so far and, we submit, only so far as to say enmity or malignity are not essential elements.

CALLINAN J: You can have intentional conduct that is not enmity or malignity.

MR WILLIAMS: Yes.

CALLINAN J: How can you persecute somebody without having an intention about it? Even if it is only an intention to withhold protection.

MR WILLIAMS: Our submission is that the Convention requirement of "for reasons of" nevertheless imports an element of motivation, even if not of enmity or malignity.

CALLINAN J: Right, so there has to be motivation or intention, I take it.

MR WILLIAMS: Yes, the persecution has to be able to be said to be for reasons of the Convention attribute.

CALLINAN J: Which involves an element of deliberation, to put it another way.

MR WILLIAMS: It will in most cases.

CALLINAN J: What cases will it not? That is what I would like to know.

MR WILLIAMS: There might be spontaneous persecution which is, nevertheless, directed at persons for one of the Convention grounds.

KIRBY J: My passages at 63, where I suggested that there were just too many historical examples in the last century of "indifference" being the foundation of persecutory policies. I think there is a question to be determined here. It came up in Chen over the proposition that you had to have a maligned intent, and I think you are correct to say that the Court has not embraced that. Query, whether it has gone as far as to say that by indifference and inactivity and failure to give the protections, picking up the Chief Justice's point, a person with responsibility could be expected to give, that that can amount to persecution. I think that is the important point, that this case presents to the Court, can you have - does the concept, the notion of persecution involve not just doing awful things to people but doing nothing to protect them when they are having awful things done to them by others.

MR WILLIAMS: That is the issue we put at the forefront of our submissions.

GUMMOW J: We have had complaints about inadequate policing in Cabramatta - pretty close to home. Do those sort of questions get involved in this debate? What was this other country - through lack of resources?

MR WILLIAMS: Those are issues that would arise if the Tribunal were obliged to investigate the existence or otherwise of a State practice of withdrawing or withholding protection from members of a particular social group.

CALLINAN J: Look, Mr Williams, I could not conceive of the Tribunal analysing the economy of Somalia and allocating priorities of government expenditure there. Is that not totally unrealistic?

MR WILLIAMS: Your Honour, that is a matter that I will leave my friend to answer.

CALLINAN J: Well, you are representing the Minister.

MR WILLIAMS: Our submission is that the issue does not arise because, on a correct construction of the Convention, the matter should not go back. If the matter does go back, those are issues that will, or at least may, arise before the Tribunal as the Tribunal will have to determine issues relating to the failure of State protection.

McHUGH J: But, in Chan - it seems a long time ago now, I said that:

The threat need not be the product of any policy of the government . . . It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution -

and I referred to a number of authorities, including Professor Goodwin-Gill, a number of articles, a number of cases.

MR WILLIAMS: Your Honour was referring to Convention persecution there, rather than to an absence, persecution for a Convention reason.

McHUGH J: Well, I was talking about the question of persecution. I mean, persecution is one thing. For the reasons of is another thing. There are two different concepts.

MR WILLIAMS: Yes, but we have no difficulty with the proposition that if the State is unable to protect those who fear persecution for a Convention reason, that that will fall within the Convention, that will raise Convention obligations.

Your Honours, in relation to Horvath it is necessary that we rely upon the judgment of Lord Lloyd, who on this point, though not on the ultimate issue, was in a minority. The relevant passages on which we rely commence at page 502. At the bottom of that page his Lordship refers to the position in the Court of Appeal and, at the top of page 503, states that:

it has been settled law since -

Jonah's Case, to which your Honour Justice McHugh referred in Chan -

that persecution should be given its ordinary dictionary meaning.

That appeared to be common ground, but the submission was put in that case that:

the ordinary meaning of the word "persecution" does not involve a failure of state protection. But he submitted that in the present context the word bears a different, and more limited, meaning.

GUMMOW J: But part of the trouble is that the matters Justice Callinan has been raising with you have not been in the forefront in the past because one has been considering the activities of totalitarian States, which are effective State apparatus structures whereby there is a withholding of authority that is certainly there. No one doubts that the police could have been sent in in 1938 to stop Jewish shopkeepers being beaten up, but where you have a State that does not have, and is not taken to have those efficient characteristics you get into problems.

CALLINAN J: Could I add to Justice Gummow's example, in 1938 you had highly inflammatory speeches being made by the head of the State and his supporters who were part of the government and, of course, the Convention was actually formulated with a very recent knowledge of all of those matters. So the matter that Justice Gummow has put to you really has not been dealt with, never been confronted. I do not think the House of Lords confronts it either.

GUMMOW J: It is rather naïve because they seem to assume that there is this efficient modern State as we understand it which can operate at optimal efficiency. That just is not so in relation to a number of these countries, I suspect.

CALLINAN J: Not only elected parliaments, but also bodies set up to supervise the police forces and various other organs of the State. It really is quite unrealistic to try to apply those sorts of standards that we have to these other countries.

MR WILLIAMS: Certainly the analysis in the court below is one which could be seen as far removed from the original purposes of the Convention, the original kinds of persecution that were in contemplation at the time at which it was formulated. We are not suggesting that is a static meaning, but it does have some significance for the construction that is to be given to the document, the historical context in which it was negotiated.

So, your Honours, still on page 503 of Horvath, Lord Lloyd, upon whom we rely, at about point G on the page, adopts the concept of surrogacy, but sees no reason to let the idea of State protection form part of the formulation of persecution and at the top of page 504, his Lordship adopts the test that the:

tribunal should first assess the ill-treatment, and answer the question whether it amounts to persecution for a Convention reason, and then, as a separate question, evaluate the protection available to the applicant.

His Lordship sees:

no advantage in running these two questions together.

GUMMOW J: What was it that founded the conclusion that there was a sufficiency of State protection in Slovakia? What was the evidence about all that in Horvath?

MR WILLIAMS: The evidence was broadly to the effect that there was a functioning police apparatus - - -

GUMMOW J: I am sure there was.

MR WILLIAMS: - - - that it did not provide protection at a level that prevented Mr Horvath from being violently assaulted on several occasions, but nevertheless that the State was, in effect, providing a reasonable measure of protection and that that was sufficient. Their Lordships were unanimous on that conclusion that that was a correct approach.

GUMMOW J: There has been no consideration of that sort here in this case yet.

CALLINAN J: Mr Williams, on one view, this might be exactly that sort of case, because I see Justice Branson in her reasons at 111 at about line 40 refers to the fact that the police officer who received the first complaint said, in effect, they could not deal with it because there were like complaints all over the country and it would take all their time. So this may well be a case of shortage of resources.

MR WILLIAMS: That is a matter that, if the matter went back, the Tribunal would be obliged to address.

CALLINAN J: Well, you keep on saying that. Do you tell me how the Tribunal is going to address - - -

MR WILLIAMS: Our submission, your Honour, is that the matter should not go back.

CALLINAN J: No, I understand that, but if the matter does go back - and you have to contemplate that possibility - are you seriously submitting that the Tribunal will have to explore the economy and the resources and the allocation of resources in Pakistan?

MR WILLIAMS: The Tribunal would be obliged to address, on the approach of the court below, whether there was a systemic, systematic failure by the organs of the State charged with responsibility for - - -

CALLINAN J: What do you mean by "systemic" in that context?

MR WILLIAMS: Well, regularised. Systematic is the better term - - -

CALLINAN J: Do you mean intentional? I do not know why you baulk at it.

KIRBY J: I think it is because you have read Chen. Chen does not embrace intention as a necessary - it can be there. With the Nazis, there is no doubt of their intention. They made it perfectly plain. But, as I suggested in Chen, persecution can often be banal. Some persecutors say they are doing it for the good of the persons they are persecuting.

MR WILLIAMS: We baulk at intent only in this respect, your Honour, that the phrase is "for reasons of" and the question for the Tribunal is application of that phrase - - -

CALLINAN J: I know that, but I am trying to find some other meaning for it. You can have intention without enmity or malignity.

MR WILLIAMS: Yes, we certainly accept - - -

CALLINAN J: You might have intention because of high moral grounds according to your religion. We might have a different view of the religion, but it might be highly moral to do something under some other religion, and therefore you can do it intentionally but without any enmity towards anybody or any malignity. You might think that you are doing them a favour. We might not think that, but people subscribing to a different faith might.

MR WILLIAMS: Our submission is that enmity and malignity are, of course, after Chen, not a requirement, but that motivation, in the sense that the harm feared must be directed for reasons of the Convention ground - - -

CALLINAN J: There is no statement, is there, in any of the cases, that you do not need either intention or motivation? Is that correct? Perhaps Mr Basten may be able to help us on that.

MR WILLIAMS: Justice Kirby, in the passage that his Honour has referred to, appears to go - - -

CALLINAN J: Well, his Honour, yes, but are there other statements?

MR WILLIAMS: That is the only statement that I can draw attention to.

KIRBY J: I think Justice McHugh has read to you the passage in his reasons - I think it is in Applicant A.

McHUGH J: Chan.

KIRBY J: In Chan.

MR WILLIAMS: We read that passage, with respect, as referring to a withholding of State protection - I am sorry, a failure of the State to protect where the harm feared is Convention based. If we are wrong in that reading, then that would be another such passage. In short, your Honours, our submission in relation to Horvath is that the approach of the majority gives primacy to the purposes of the Convention, the broadly defined purposes of the Convention, rather than to the text, and to that extent is inconsistent with the approach of this Court in Applicant A and of three members of this Court in Ibrahim.

KIRBY J: I wonder if that is a false dichotomy. As I understand it, you construe international conventions as we construe legislation, having regard to the context of international law and having regard to achieving the purposes of the Convention. In that sense, we are not, as it were, putting completely out of mind the purpose of the Convention, which was to repair a defect in both international and domestic law, in so far as the Convention is brought into operation domestically. So it is not a complete dichotomy, surely, that - - -

MR WILLIAMS: No, we do not submit for a complete dichotomy. Our submission is that - - -

KIRBY J: Ultimately, the loyalty must be to the text, which is the principle in municipal law interpretation, as well.

MR WILLIAMS: Primacy must be given to the text, read in context in light of the scope and object of the instrument. If I might turn then to the second issue. The second issue raised by the appeal is whether harm directed at a person by a private individual for a non-Convention reason, or for a non-Convention reason but in the knowledge of the unavailability of State protection, is capable of being persecution, if the State fails to provide protection to members of the particular social group of which the person is a member.

I have taken the Court to the passages in Justice Lindgen's judgment in which that test is formulated. In our respectful submission, there are at least two difficulties with the first of those approaches. First, it conflates the reasons for the persecution with the reasons for the absence of State protection. This is essentially based upon the central proposition upon which we rely, that persecution and protection are distinct concepts.

Conflating the reasons for the absence of State protection with the reasons for the harm feared has particular consequences. If the Convention is read as referring to "a fear of being persecuted that is well-founded for reasons of", rather than "a well-founded fear of being persecuted for reasons of", a significant limitation inherent in the text is eliminated.

The Convention is a deliberately limited compact and we rely, in that respect, on Applicant A and at this point I should take up the invitation of your Honour Justice Kirby to take the Court to the passages upon which we rely from Applicant A 190 CLR 225. We rely on passages first in the judgment of Justice Dawson at page 240 at about point 9 on the page, the last paragraph. We rely on that paragraph to its conclusion at the top of page 241. Our submission is that the causal link requires a focus on the motivation of the persecutor. At page 248 - - -

McHUGH J: This depends upon who you are looking at as the persecutor. My present inclination is that at the moment the persecutor is the State, because it is discriminating against somebody in the respondent's position in that it fails to give her the protection to which she would otherwise be entitled under the law. She is not getting the equal application of the law. The law is there, but she is not getting the protection.

MR WILLIAMS: Our submission, your Honour, is that persecution should not be equated with discrimination but - - -

McHUGH J: No. I said in Ibrahim that the Convention is against persecution, not discrimination, but, nevertheless, discrimination must be at the heart of any form of persecution. I do not know that persecution can exist without discrimination.

KIRBY J: Certainly the Parliament in its new definition of persecution says the persecution involved - one of the three elements it is concluded is that persecution involves systemic and discriminatory conduct.

MR WILLIAMS: Yes, we are not submitting that it cannot be part, but our submission is, and it is our central submission on the appeal, that persecution has its dictionary meaning, it involves active forms of harm and persecution in the present context is the harm feared from the husband and the absence of State protection is a matter that comes in at a different stage of the Convention.

McHUGH J: I will have to read your argument very carefully because I am not sure that we are not - my conceptual structure of the case is quite different from yours. I think it is, dramatically. I see this, as I said to you - it is the State that is discriminating against because you seem to throw all the weight of your argument on discrimination at a private level and then say the argument is that the State does not doing anything - or, you say the argument against you is that the State then does not do anything to protect the applicant against that discrimination, but I rather see it, at the moment, as at the State level the persecution exists.

MR WILLIAMS Our submission, and again - - -

McHUGH J: Because all the cases say that, do they not, that it is the States that one is looking at?

MR WILLIAMS We have no difficulty with the role of the State being central. This is an instrument negotiated at State level and to be understood at State level but that does not conclude the question and our submission is that the role of the State and the absence of State protection is, of course, a central element but that does not permit one to conflate terms within the Convention.

McHUGH J: But pursue the example the Chief Justice gave earlier: suppose in the 1850s miners on the goldfields at Ballarat and Bendigo frequently assaulted Chinese miners because they were selling their gold at lower prices and that was the reason for the continual assault but that it was government policy that they would not prosecute miners for assaulting Chinese? Why is not the proper approach in that case to say that discrimination is that of the State of Victoria? It persecutes the Chinese by failing to give them the equal protection of the law?

MR WILLIAMS If I might answer your Honour's question with a variation of the example: if the persecution is directed at Chinese miners and the State fails, as a practical matter, to provide protection, not because of any particular reason relating to ethnicity or race but simply because it is unable to control the conduct, nevertheless, that would be persecution within the Convention.

GLEESON CJ: No, you do not deny the validity of the example that has just been put to you by saying when you look at the reason why the forces of the law are not being brought to bear on the conduct towards the Chinese miners you might find that there is a benign reason for it, you might find that they cannot afford to do it or you might find that there is just a few lazy policemen around the place. The fact that that is a possible outcome of your inquiry does not mean that the inquiry is irrelevant, does it? You might find that there is an official government policy called "The White Australia Policy" that is the reason for the conduct in question and if you found that that might have certain consequences in terms of a conclusion of persecution, might it not?

MR WILLIAMS Yes, your Honour, but my counter example was to illustrate the point that the persecution in question would remain Convention-based, even if there were no such State policy, that is to say that the role of the State or the motivation of the State, the reasons of the State protection are not the critical element in informing the nature of persecution.

GLEESON CJ: It may be that if the Tribunal went back and looked for the reasons for the conduct of the police in question in the present case, they might find that the reasons had nothing to do with any State policy at all. They might find that the police were lazy; they might find that the police have been bribed by the respondent's husband; they might find that the police were under-resourced or understaffed or that they had a policy, perhaps not radically different from a policy that prevailed not too far from here 30 or 40 years ago, of just not getting involved in domestics. But that does not deny the possibility that they might also find an explanation for the police inactivity that does constitute State persecution, does it?

MR WILLIAMS: No, your Honour, if one accepts that the absence of State protection is capable of being persecution. That is really the single point at the centre of the appeal.

GLEESON CJ: You say that whatever explanation there is of the unresponsiveness of the authorities at a local level to the complaints made by this respondent, that explanation could not possibly amount to persecution by the State?

MR WILLIAMS: That is so, because of the ordinary meaning of "persecution".

GLEESON CJ: And because of what you say is a distinction between persecution and protection?

MR WILLIAMS: That is so. The point is a limited one in its scope. It is essentially textual and it is not, as we apprehend it, decided by any case - certainly not in this Court. The reasoning of the majority in Horvath is against our proposition, but that was not central to the conclusion in Horvath.

GLEESON CJ: Do you submit that there is an inconsistency between the decision in Islam and the decision of this Court in Applicant A?

MR WILLIAMS: Yes, your Honour. The inconsistency comes in the approach of the House of Lords to the question of motivation and the particular social group. If it is convenient to the Court, I might go to that point immediately. The decision in Islam [1999] UKHL 20; [1999] 2 AC 629 concerned the meaning of "particular social group" and, as Lord Steyn observed, causation did not loom large in the appeal. The relevant passages of Lord Steyn's judgment commence at page 639.

GUMMOW J: If we can just look at the headnote for a minute on page 630D, it might encapsulate things a little bit. It says:

Held, allowing the appeals . . . had to exist independently -

There is no inconsistency there with Applicant A, is there?

MR WILLIAMS: No, your Honour.

GUMMOW J: Then the next holding and there are two more holdings. Which of those do you say is inconsistent? If there is any further holding, tell us what it is.

MR WILLIAMS: The holdings that we impugn, your Honour - - -

GUMMOW J: But do you impugn the second or third holding in the headnote?

MR WILLIAMS: No, we impugn the last just above F.

GUMMOW J: What, beginning "that although not all"?

MR WILLIAMS: Yes.

GUMMOW J: Thank you.

MR WILLIAMS: If I could take your Honours directly to the passage where that occurs.

GUMMOW J: That holding is a bit like a finding of fact to some extent.

MR WILLIAMS: Yes, your Honour, very much so. If I can make good that proposition, commencing at page 644.

GUMMOW J: If it has that characteristic, what is the inconsistency?

MR WILLIAMS: It may be, your Honour, that the point is really one of distinction rather than of direct inconsistency.

GUMMOW J: Yes.

MR WILLIAMS: At page 644 his Lordship redefines the group by reference to an idea put forward by Lord Hoffmann that the group could be defined widely as "women in Pakistan" in contrast to narrower formulations that had been put forward in the Tribunal and in the courts below. His Honour then on page 645 - - -

GUMMOW J: You do not dispute that, do you?

MR WILLIAMS: No, we do not accept that - - -

GUMMOW J: Justice Callinan raised it with you, but you do not dispute it?

MR WILLIAMS: We do not accept that women are capable of constituting a particular social group.

GUMMOW J: I see.

CALLINAN J: I am sorry, I am not clear now. What do you not dispute? What do you put and what do you not dispute? I missed it, I am sorry. What do you not dispute? You do not dispute that women in Pakistan are capable of constituting a particular social group?

MR WILLIAMS: Yes, there is nothing in the size of the group "women" that prevents it from being defined as a particular social group.

CALLINAN J: Even though it may constitute half, or almost half, of the total population of a country, it can still constitute a particular social group. You make no submission to the contrary of that?

MR WILLIAMS: That is so, your Honour, but we do not accept that everything that might be thought to flow from that, that persecution could be for reasons of it.

CALLINAN J: It seems to me that a lot does flow from it, or a lot may flow from it, particularly on the findings here. When I say "findings here", I mean the findings in Shah, assuming that that is the same sort of evidence as was before the Tribunal - and it seems to me to be similar. It seems to accept that because they are women in Pakistan they are all liable to persecution, in fact.

MR WILLIAMS: That is a further step.

CALLINAN J: It is a step that the House of Lords seems to have taken.

MR WILLIAMS: Yes, essentially by making a finding of fact of its own, in our respectful submission. Having defined the group potentially as being as wide as "women in Pakistan" his Lordship then at page 645 goes on to refer to a possible narrower group, page 645 at about B through to C.

CALLINAN J: It says:

If I had not accepted that women in Pakistan are a "particular social group," -

so plainly his Lordship has accepted that. He seems to have accepted - and that might have been sufficient for that part of the case. The next thing that his Lordship says may be obiter.

MR WILLIAMS: His Lordship then, in his definition of the narrower group, defines the group differently to the way in which it had been defined in the Tribunal and the court below, and then goes on at page 646 to deal with the issue of causation.

CALLINAN J: Before you go to that though, it says there are three unifying factors, three factors that would define the group more narrowly:

the gender of the appellants, the suspicion of adultery, and their unprotected position in Pakistan.

So that if the narrower definition were to prevail, it would, indeed, be a great deal narrower, would it not?

MR WILLIAMS: It would.

CALLINAN J: I am sorry. I interrupted you.

MR WILLIAMS: I should also say there is no group in the present case that could be defined in those terms, in our submission. If I could then turn to page 646 where the issue of causation is dealt with. Having redefined the group in the two ways previously indicated, his Lordship then refers to alternative submissions as to the test for Convention nexus and then at point C to D makes what, with respect, appears to be a factual finding that the fear in this case was motivated by Convention reasons. Now, it may be, as your Honour Justice Gummow puts to me, that if that is just a factual finding it is not a point of inconsistency with Applicant A. There is a similar approach apparent in the judgment of Lord Hoffmann.

GLEESON CJ: Lord Hoffmann says that the Constitution prohibits discrimination on grounds of sex.

MR WILLIAMS: Yes.

GLEESON CJ: What is the status of that Constitution at the moment?

MR WILLIAMS: There is no evidence before this Tribunal about that point, your Honour. At page 652 Lord Hoffmann, at about point C, also finds that "women form a" particular "social group" and then at page 653, at about point E turns to "the question of causation" and, again, his Honour's approach appears to involve a finding of fact additional to those made by the Tribunal on the differently formulated groups before it.

GLEESON CJ: You can, can you not, have persecution of a majority in a community?

MR WILLIAMS: In principle, there is no reason why not, your Honour.

GLEESON CJ: Well, when the Hutus and the Tutsis were dealing with one another it was not a question of who was in the majority. It was a question of who was in power as I would understand it.

MR WILLIAMS: Yes. Yes, we do not submit that the Convention is restricted to minorities, although they will, of course, be the most frequent targets. The dissenting judgment is that of Lord Millett. At page 660 at about line F through to line H his Honour adopts reasoning that parallels that of the majority in Applicant A and at page 662, from about line E to line G, his Honour adopts an analysis which, we submit, is consistent with the approach of this Court, and to be preferred to the approach of the majority.

CALLINAN J: Why can it not be defined by the persecution? His Lordship says it cannot, but it does not immediately strike me why it cannot.

MR WILLIAMS: Because to do so is to eliminate one of the essential links in the Convention.

CALLINAN J: Does it necessarily eliminate it? It duplicates it.

MR WILLIAMS: If one assumes that the persecution can define the group, then the definition becomes circular.

CALLINAN J: In every case?

MR WILLIAMS: Certainly in many cases.

CALLINAN J: You might be right. I am just not completely satisfied at the moment, but you may well be right.

MR WILLIAMS: I think it is at least - - -

GLEESON CJ: Is the idea found, partly at least, in the drafting history of the Convention? They set out with some care to state and limit the reasons that would constitute Convention reasons, but you would rather horse-and-buggy through that if you allowed the fact of persecution to constitute a particular social group.

MR WILLIAMS: That reasoning is a common element to all of the majority Judges in Applicant A.

CALLINAN J: Battered wives may be battered wives because they share some characteristic that makes them batterable, that they are particularly susceptible or vulnerable. They do not have the willpower or the social position or some other means perhaps of resisting the battering. In that sense, the fact that they are battered does tend to define them. In other words, I am not satisfied that you can exclude absolutely the commonality of the form of persecution as a distinguishing characteristic of the group.

MR WILLIAMS: Justice McHugh referred in Applicant A to the possibility that over time persecution may define a group. I think the example given was left-handed people. If there was a State policy relating to left-handed people, and in time they became identified as a group, then persecution directed at them for that reason might, nevertheless, be for reasons of membership of a group, even though at an earlier time the persecution had formed an element in the definition of the group. Your Honours, it remains simply to go to some of the findings of the Tribunal in relation to the issues.

The reasons are at the beginning of the appeal book, but if I could start by referring briefly to page 6 of the appeal book at line 54, the Tribunal notes the claim that after reporting one of the incidents of violence, when the respondent's husband returned home:

he told her that he knew of the police report and warned her that the police could do nothing.

At page 8 at about line 32 there is a passage that your Honour Justice Kirby referred to where:

The Tribunal asked the applicant who she fears in Pakistan. She said she fears her husband and his family.

There is also a reference to fearing the police for particular reasons which were the subject of findings by the Tribunal. At page 14 at about line 14 the adviser's submission is recorded that:

because the `private' violence was tolerated by, and apparently sanctioned by the state, there is a public dimension to the violence.

At about line 30, there is a submission:

that the state laws ensure direct state complicity in this activity such that the state becomes the persecutor.

The Tribunal then makes its findings and gives its reasons at page 15. At about line 45 it summarises its central finding. It then refers to Jahazi to the effect that:

a bare causal connection . . . was insufficient -

but then goes on to quote Jahazi to the effect that causation is not to be resolved by a merely mechanical process and at the top of page 16 the Tribunal quotes the passage of Jahazi to the effect that the extent to which the fear is attributable to membership is a factor to be considered. After referring to Ram, the Tribunal then states at about line 18 that:

the Convention ground must be more than peripherally linked to the persecution. In relation to the Convention ground of `particular social group' the persecutor must persecute because of the victim's actual or perceived membership of a cognisable group in society. It is not necessary that the fear of persecution be solely attributable to membership of a relevant social group -

The Tribunal then goes on to make specific findings. At about line 30, the husband "was not motivated to harm her" because of membership of a group. Line 32:

no nexus between the harm which the applicant claims to have suffered at the hands of her husband and the Convention ground of particular social group. She was not harmed because she was a member of any of the particular social groups proposed -

and they are then listed. At about line 44:

She was harmed because the applicant's husband's family -

feelings towards her. The findings are then made further on page 17 at about line 4:

the applicant was not harmed for a Convention reason.

At about line 33 that her:

difficulties with her husband were of a private and personal nature and are not related to the Convention ground of particular social group, nor any other Convention reason.

McHUGH J: But the point that is put against you is that this just misses the point.

MR WILLIAMS: Our submission is that the Tribunal has recorded the adviser's submission, that the sanctioning of private violence by the State gave a public dimension to it, then formulates the test of, for reasons of in unobjectionable terms, recognising that there could be multiple reasons and then applies it by making findings which address the issue of nexus; findings that there is no nexus between the harm feared and the Convention ground.

McHUGH J: But if the law requires the Tribunal to examine whether or not the State is involved in this matter and there is a failure to do so when there is material before it which would require it to do so, why is that not an error of law for the purpose of judicial review?

MR WILLIAMS: Why is that not an error of law?

McHUGH J: Yes.

MR WILLIAMS: Well our submission is that the Tribunal was not obliged to go further than it did and to address the issues expressly. It has recognised the possibility of multiple motivations. It has recorded the claim there is no duty giving a beneficial reading to the Tribunal's reasons why it is obliged to go further and address the issue expressly. Unless there are further matters, those are our submissions, your Honours.

GLEESON CJ: Thank you, Mr Williams. Yes, Mr Basten.

MR BASTEN: Your Honours, before I come to the argument we seek to put in this matter, could I just identify some material which we have provided to the Court since the bundle that we handed up. Firstly, there is a brief document which amends some footnotes in our submissions, and we apologise for the errors which crept in. We have in that document identified the place in the bundle where the material is to be found, should it be of assistance to the Court. Secondly, we have provided to the Court three other articles: one is one that we had referred to at tab 41 and promised to supply a copy of. At tab 41, or rather in the index to the bundle, we have indicated which pages we rely upon. It is a lengthy article by Anker, Gilbert and Kelly. We have only provided the whole of it because it is very difficult to get hold of in this country and we thought it might be of assistance if the Court needed it to have the whole of it; we certainly do not refer to the whole of it in our submissions.

The second of the articles that we have provided is a short extract from a paper by Macklin entitled "Cross border shopping for ideas". In our written submissions we stated that support, which was sought to be derived by the appellant from this article, involved taking a quotation out of context from page 70. We have provided the whole of page 70 in order to indicate the context which that quotation was made in. It involves the idea that domestic violence or familial violence is a universal problem and that is a point I wish to come back to in a moment.

The other two papers that we have provided are two that relate to the European approach to this Convention: one is a paper by Professor Kalin "Non-State Agents of Persecution and the Inability of the State to Protect", which is contained in a recent volume 15 of the Georgetown Immigration Law Journal, and a further paper from the same volume by Reinhard Marx, "The Notion of Persecution by Non-State Agents in German Jurisprudence". These two papers address an issue which we say does not arise squarely in this case, but is relevant to a question that your Honour Justice Gummow asked about the correct approach to the Convention in a circumstance where there is no effective State government in operation, and, I think your Honour noted in Ibrahim's Case that the accountability and protection theories in German, French and Swiss jurisprudence draw a distinction between where there is and where there is no effective State persecution so as to find no role for the Convention where the State is entirely inoperative.

Professor Kalin in particular provides both an analysis of developments in German law which suggests that that unqualified proposition is not correct and also provides his own critique as to the approach which has been adopted by at least the intermediate courts and possibly the constitutional court in Germany. I will come back to that briefly if I may.

Your Honours, those are the materials in addition to those we have supplied. I apologise for the size of the bundle. I wanted to start if I might by identifying - and I hope I do this correctly - three propositions on which I understand the - - -

GUMMOW J: Just before you do that, I notice in the Kalin article at page 425 he refers in that paragraph in the middle of the page to something that has long worried me about all this:

The "protection view" does have one fundamental problem.

He is talking about diplomatic or consular protection.

MR BASTEN: I was going to come to that aspect of it, your Honour. One of the things we wanted to say about protection is that one needs to take account of the fact that it seems to be undoubted that historically that is what "protection" was meant to refer to in the Convention. Most of the modern case law treats it consistently with Professor Hathaway's approach as referring to internal protection in the country of nationality. One needs to reconcile those two concepts or one has a problem with the operation of the Convention. Could I come back to that?

GUMMOW J: Yes, I think it is an important question. In a way it is a threshold question.

MR BASTEN: I think that is right, your Honour. Perhaps I can just - - -

GUMMOW J: I do not want to take you off your path.

MR BASTEN: It is certainly something I intended to come to in a moment. I was simply going to identify at the outset what we understand to be the three propositions on which the Minister relies. They are these: firstly, that one must identify two separate elements in Article 1A of the Convention, namely persecution and protection. As he argues, these do not overlap and are not, at least in the first instance, to be seen as interrelated.

The second proposition is that connection with a Convention ground qualifies the range of persecution and has no bearing on the meaning or operation of "protection". Thirdly, it follows, so it is said, that the agent who causes serious harm must act within one of those relevant grounds. With respect, our short response to that is that that misconceives the role of the State under this Convention and that, in order to understand the role of the State in the Convention, one needs to understand more precisely the role of the concept of "protection" which only arises in the final limb of the Convention.

Your Honours, I will also come in due course to make some reference to the factual material before the Tribunal but, as has become apparent in the course of argument, it is difficult to say much about it, firstly, because it is clearly not all before this Court and, secondly, because the heart of the argument is whether the Tribunal erred in failing to have regard to a volume of material which was put in terms as supporting the approach which we now seek to support in this Court.

We said in the course of the special leave application that this caused a difficulty for the way the Minister could run this case, and it really is a very limited basis upon which he can seek to succeed. As we understand it, it is put on that limited basis, now.

May I then turn to the relevance of State protection in this Convention and start with what we would understand to be an unexceptionable proposition, that where the State or its agents are the sole source of oppression, the role of this part of the definition is at least muted, but it is helpful to consider its role in what might be considered the paradigm case. When I say "this part" of the Convention, may I just identify which part it is, because it is a provision which comes towards the end of the definition in Article 1A(2) and it is phrased in terminology which refers to the state of mind of the claimant for protection status. He or she, it is said:

is unable or, owing to such fear, is unwilling to avail himself of the protection -

of the country of nationality. That is the context in which this concept arises. Before seeking to address that concept immediately, may we note - - -

GUMMOW J: But it arises in a geographical sense, as well.

MR BASTEN: It does, your Honour. I will come to that aspect.

GUMMOW J: This individual has these fears and has them at a time when this individual is outside the country.

MR BASTEN: Indeed, and that, of course, links precisely with the concept of international protection as opposed to domestic, and I do intend to come to that aspect of it. Before I do, might I just note that there is at least a perceived dichotomy in the way that these cases are put, between what is called State and non-State action. That dichotomy, we say, is more apparent than real. One is really looking at a scale which is measured by distance and control from the centre of governmental activity. Thus, even police officers, who are almost uniformly identified as State agents for these purposes, who use their position and authority to abuse and molest women in custody - as is the evidence in this case - do so, not, of course, usually, at the direction of the central minister for police, or whoever that authority may be, but because it is acceptable and because they can act with impunity.

The level of State control at the next stage over ordinary citizens is no doubt more attenuated, but laws which protect physical integrity do so by prohibiting assault by anyone, and one is therefore simply at a further stage removed in a scale of control exercised by the State within its jurisdictional boundaries. Accordingly, there is no clear dichotomy, with respect, and nor does the Convention adopt terminology which reflects any such dichotomous approach.

This approach helps us to identify a further important factor in considering protection of women under the Convention. While violence against women may exist in all cultures, it is not uniformly spread across all cultures and the incidence of violence and the concomitant level of protection provided to women are not to be explained by looking at individual personal relationships. That is not the focus of this Convention, nor is it the proper focus for assessing the circumstances of persecution.

Might I just illustrate that point by taking your Honours very briefly to certain passages in materials which provide some understanding in the international sphere of the significance of violence against women in the family. Tab 18 of our bundle is a United Nations document, one of the first in a series which seek to identify the explanation for violence against women in the home and at page 162 in our bundle at the top of the page, the first full paragraph, the secretariat responsible summarises the matter in this way:

there is no simple explanation for violence against women in the home. Certainly, any explanation must go beyond the individual characteristics of the man, the woman and the family and look to the structure of relationships and the role of society in underpinning that structure. In the end analysis, it is perhaps best to conclude that violence against wives is a function of the belief, fostered in all cultures, that men are superior and that the women they live with are their possessions or chattels that they can treat as they wish and as they consider appropriate.

GLEESON CJ: Who was the author of this information?

MR BASTEN: The author, your Honour, is not identified, which means that it is an official document produced by the secretariat of the Centre for Social Development and Humanitarian Affairs in the United Nations, which is identified at the top of page 159.

KIRBY J: What is the principle that permits us to use this to construe the Convention?

MR BASTEN: Can I just come to that, your Honour. What I am seeking to do is to provide a basis, in effect, for denying the reading into this Convention of a distinction between private and public acts, which seems to underlie the proposition that one can simply look at the motivation of the individual husband in this case. It is a limited purpose, and I will not spend more time on it than - - -

GLEESON CJ: Well, I really would like to understand the basis upon which we take account of information of this kind. Let me draw your attention to the form of the information. It is a form of information that states "It is, perhaps, best to conclude" something. We do not know the author. We do not know the qualifications of the author. We do not know the agenda of the author - "agenda" with an "a" in front of it.

MR BASTEN: Yes.

GLEESON CJ: Now, let us suppose we were to give a judgment which said, "As part of our reasoning, we accept the proposition that it is, perhaps, best to conclude", et cetera. What would we be doing when we did that?

MR BASTEN: If we understand the purpose for which we are providing this material, your Honours would be saying that in order to understand the operation of this Convention, one needs to understand the way in which certain fundamental human rights have been identified and analysed by appropriate international organs, of which this, being an agent of the United Nations, is one - no more than that.

GLEESON CJ: Would this have any higher status than if you stood up at the Bar table and said, "I submit it is best to conclude that"?

MR BASTEN: On one view not, your Honour. What I am going to say is that it is part of an analysis which has ultimately found its way into a declaration by the General Assembly of the United Nations, which is the document at tab 19 at paragraph 18, and into a further report of a world conference on women undertaken in Beijing in 1995.

GLEESON CJ: Where does it find its way into the declaration?

MR BASTEN: The declaration at paragraph 18 on page 165, your Honour. It is part of an understanding of an approach to - - -

GLEESON CJ: I am terribly sorry. I am anxious to relate what appears on page 162, in the last sentence of the first complete paragraph, to what appears on page 165. Where do I see it?

MR BASTEN: It is part of an analysis, your Honour, which informs the understanding of universal human rights, and the full and equal participation and protection of women, which is identified in paragraph 18. I do not say those words find their way in.

GLEESON CJ: Just a moment. I do not see the connection. I cannot see any part of paragraph 18 that strikes me at the moment as controversial, but the conclusion expressed in the sentence that I am asking you a question about, does seem to me to be possibly distinctly controversial.

MR BASTEN: Ultimately, your Honour, these are going to be matters which go to the fact-finding exercise in identifying a particular social group, which is a fact-finding exercise to be undertaken by the Tribunal. The question which needs to be asked is whether, in a particular society, it is possible to identify a group by their gender in circumstances where all one knows is that some individuals within the group are subject to violence in the home. What we seek to say - it may be that this is not ultimately disputed, from what Mr Williams said a moment ago, that an analysis - could I say one other thing. What he seeks to rely on though is a finding of fact on the part of the Tribunal, that the only thing which can be looked at in identifying the cause of the violence to this woman, is the motivation of her husband - - -

GLEESON CJ: I understand the argument and I am sorry to be unduly persistent about questioning this particular sentence. Let me ask you this question: is it your submission that in the Australian culture we foster the belief that the women with whom men live are their possessions and chattels, that they can treat as they wish and as they consider appropriate, because that is a statement of fact contained in this document that you are relying on?

MR BASTEN: Yes, it should be read in that way, your Honour; it is intended to be read in that way.

GLEESON CJ: Well it says so. It says that "belief, fostered in all cultures". Is that belief fostered in our culture?

MR BASTEN: I hope not, your Honour.

GLEESON CJ: Well, is the statement of fact untrue?

MR BASTEN: I hope it is largely untrue in relation to Australia. What we say is though that it has a bearing upon an understanding of violence in cultures where women are unprotected and it has a direct link to the way in which the respondent put her case to the Tribunal. In order to say, if it is necessary to say it, that it is not sufficient for the Tribunal to make a finding of fact, which can then preclude any further analysis that the husband treated his wife in a particular way for personal reasons then, what I was seeking to say was that there is a well-understood basis in international human rights documents, which provides a different analysis. Hopefully it is not true of Australia, but we are not - - -

GLEESON CJ: If we know that this statement is untrue of our culture, why should we assume it is true of the Islamic culture?

MR BASTEN: I do not say that your Honours should make any assumption about what facts should be found about Islam, and I was going to make a point about that, and perhaps I can make that in a moment. All that I am seeking to say is that where there has been violence in the home, it is not necessarily a sufficient factual conclusion to say that one simply looks at the motivation of the immediate oppressor, in this case the husband. I put it no higher than that, your Honour, and it may be that the Court either does not need to go to that question or finds it of no assistance in that regard.

GUMMOW J: Do we know if the State of Pakistan was a party to this Fourth World Conference in 1995, at page 168?

MR BASTEN: Yes, it was, your Honour.

GLEESON CJ: Do we know what was the gender of the head of government of the State of Pakistan at the time of the events with which we are concerned?

MR BASTEN: In 1996, no, I do not, your Honour.

GLEESON CJ: At about that time it was a woman, was it not?

MR BASTEN: Yes, there was a woman in charge of - - -

GLEESON CJ: Was she fostering the belief in her culture that men are superior and that the women they live with are their possessions or chattels?

MR BASTEN: I do not know that, your Honour. It may be that having a woman as the head of a government does not provide any effective protection to other women in the culture.

KIRBY J: Her influence did not seem to reach out to the four police stations.

MR BASTEN: Yes, that may well be so and there are various answers to these questions. I was going to make a point about Islamic culture in relation to what arose this morning. On one view there is - - -

GUMMOW J: The trouble is, Mr Basten, a lot of these United Nations documents are aspirational.

MR BASTEN: They are indeed, and I am not suggesting that they form - - -

GUMMOW J: Not factual.

MR BASTEN: I think it was put to your Honours that there is no level of State practice - - -

GUMMOW J: There is no reason why they should not be aspirational, but one should understand them as aspirational.

MR BASTEN: Yes, and I was not seeking to give them any greater status. I was not putting this, although it was suggested against us, I think, that we rely on them as demonstrating State practice. We do not.

CALLINAN J: I think that document has a capacity to harm your case rather than assist it, because it is so patently wrong.

McHUGH J: I think at the lowest they are muddying your argument. You have some strong points and you seem to me to be dealing with matters that are almost outside the case and, at best, right on its periphery.

MR BASTEN: Our principal argument in relation to the way one approaches this question is that the error in the approach taken by the Tribunal infects its fact-finding operation and the material which was - - -

McHUGH J: I am not sure about that. At the moment, having read the submissions for the appellants, it does not seem to me that they have asked themselves the right questions.

MR BASTEN: That is what I meant, your Honour, yes.

KIRBY J: Well, you make this point by saying the focus has to come back to the response of the State as distinct from the response of the husband or his family?

MR BASTEN: Yes.

KIRBY J: That is what the Refugees Convention is all about and this does not seem to have attracted as much attention as it ought to have.

MR BASTEN: That is so. What is put against us, as I understand it, is that the Tribunal was entitled to treat familial violence as an entirely private matter and separate from any question about protection from such violence. When one comes to identifying possible ways in which the Tribunal could have properly have dealt with the matter, it may perhaps assist - perhaps it does not - to understand the way in which these matters can be analysed.

GUMMOW J: But what do you say to Justice McHugh's point that you look at this definition and you say that owing to a well-founded fear of being persecuted by the State by withholding its police protection in particular ways and discriminating in favour of one section of the population rather than another, she is being persecuted by the State for membership of a particular social group. She is outside Pakistan and that is the end of it. She is unable or unwilling to avail herself of the protection in Australia of that country.

KIRBY J: Now, inherent in that proposition is a notion of persecution which is broader than it appears is the definition in the dictionaries, that persecution in the dictionaries, the multiple explanations of the word seem to contemplate positive action and I think you would concede that normally that is what it means. Normally it does mean positive action by the State against somebody. That does not seem to be the case in respect of Pakistan.

MR BASTEN: Well, the point that I was seeking to make in that regard is that the dictionary definition of "persecution" does not identify an actor. For the purpose of this Convention, we need to consider it with specific reference to the State and I, of course, accept that that is correct. When one looks at how the State acts, and it can act in a wide variety of ways, one may then have some difficulty in accommodating the dictionary definition to the range of ways in which the state can act. That was why I sought to say there was no clear dichotomy between a State act or in someone else. But if one - I am sorry?

McHUGH J: I was going to say "persecution" takes its colour to some extent from the preamble to the Convention which emphasises that human beings enjoy fundamental rights and freedoms without discrimination. I mean, the term "discrimination" appears, I think, more than once in the preamble.

MR BASTEN: Yes, that is so.

CALLINAN J: Mr Basten, your real point is, is it not, that the Tribunal simply failed to give any consideration to the very considerable volume of evidence as to the way in which police authorities, a State organ, dealt with complaints of this kind by women - there was a great deal of evidence in that regard - and the error on the part of the Tribunal was that it seemed to look at was the question whether she could be charged under Pakistani law with absconding with the children, and what society's attitude was towards allegations of adultery. Those seem to be the only two questions, it appears to me, that the Tribunal considered, that the Tribunal did not consider in any way at all the actions of the police. Now, it may be an open view that the police were not carrying out any policy, either spoken or unspoken, but there was simply no consideration of that matter at all.

MR BASTEN: Yes. That, at the end of the day, is our proposition, your Honour.

CALLINAN J: That would be sufficient for your purposes, would it not?

MR BASTEN: Yes, unless the Minister can make out the proposition that one simply cannot consider the role of the State in identifying the persecutory conduct.

GLEESON CJ: It is sufficient for your purposes to look at the passages in the reasoning of the Tribunal that you referred to and say, "On the evidence, there was more to it than that".

MR BASTEN: Yes.

GLEESON CJ: And it was, at least, possible that what there was was relevant.

MR BASTEN: Yes.

GLEESON CJ: Is that a convenient time?

MR BASTEN: Yes, your Honour.

GLEESON CJ: We will resume at 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: Your Honours, might I return to the concept of protection that I was dealing with before lunch and come straight to the point which your Honour Justice Gummow was raising with me as to the proper construction of the terminology of the article. As a convenient means of putting forward our argument, might I invite your Honours to go to document 8 in our bundle, which is a document produced by the UNHCR which, as the introductory paragraph notes, is in effect an updating of the interpretive provisions of the handbook in the light of common issues which have arisen since the publication of that handbook some 20 or more years ago and I do so merely as - - -

KIRBY J: When was this published? You see, if we were to cite this, how does one cite it? Maybe it is in the index.

MR BASTEN: Your Honour, it was published only in April of this year by the UNHCR. It is a document which was referred to in their September report to the General Assembly of the United Nations. I cannot give your Honour any other publication details. It is clear from the form that it does what it says it does in the first paragraph. But perhaps I should say this, I only seek to rely upon it as I would upon a handbook, namely for guidance. It summarises the points I seek to make in a summary form in paragraph 35 and following. I was going to go there, but perhaps before I do I should simply note there are a number of headings through the document where different aspects of Article 1A are dealt with.

One of the points I was going to make was that one can ask one particular clause in the Convention to do more than it should properly be asked to do and it is clear that the analysis requires consideration of each of the elements of the Convention and, for example, in the discussion of persecution at page 29 to 30 of the bundle there are a number of concepts dealt with which I do not need to go to for present purposes but which obviously require attention in appropriate cases. Paragraph 20, in substance, adopts this Court's approach in Ibrahim.

May I then go to the concept of being, "Unable/unwilling to avail of state protection" at paragraph 35. The Commission says:

The meaning of this element of the definition has recently been much debated. According to one view, it refers to protection by the state apparatus inside the country of origin -

That is a reference to Professor Hathaway's view. The relevant parts of Hathaway are set out at tab 33 of our bundle, and I will not take your Honours to it, at page 299. There is, however - I am sorry, I should go on:

According to others, this element of the definition refers only to diplomatic or consular protection available to citizens who are outside the country of origin.

A point your Honour Justice Gummow noted. That is a reference to Antonio Fortin in an article which appears at tab 36 in our bundle and I will go to it at the end, if I may. It then continues:

Textual analysis, considering the placement of this element, at the end of the definition and following directly from and in a sense modifying the phrase "is outside his country of nationality," together with the existence of a different test for stateless persons, suggests that the intended meaning at the time of drafting and adoption was indeed external protection. Historical analysis leads to the same conclusion.

That is a reference to the Kalin article which I provided your Honours with this morning, and I will come to that. Then they say:

Unwillingness to avail oneself of this external protection is understood to mean unwillingness to expose oneself to the possibility of being returned to the country of nationality where the feared persecution could occur.

At 36 they note that there now exists jurisprudence.

GUMMOW J: Yes, what is it? If one goes to footnote 79, there is this Euro-speak "jurisprudence". If you go to footnote 79 that says look at footnote 74.

MR BASTEN: Yes.

GUMMOW J: You have Professor Hathaway.

MR BASTEN: That goes back to Hathaway.

GUMMOW J: Yes, that is right.

MR BASTEN: Zalzali v Canada, Adan and Horvath in England.

GUMMOW J: That is right.

MR BASTEN: Yes, that is that and those are the jurisdictions which have basically followed the protection approach.

GUMMOW J: Well, they have invented it.

MR BASTEN: Invented it, perhaps. Horvath is a bit more recent than invention, perhaps, and New Zealand does, too, and so, in a sense, does this Court, although it has not analysed the process by which one achieves it.

GUMMOW J: But, whereabouts do we find - Lord Lloyd is the author of this, I think - where does he consider the matters referred to at paragraph 35? He does not?

MR BASTEN: Your Honour is referring to the passage in - - -

GUMMOW J: Yes, where does the House of Lords in Adan look at the other side of the coin, which is paragraph 35 of this article here? They do not. They do not deal with the text of the Convention and its history.

MR BASTEN: I see, but they adopt an approach which is - I think they do adopt Hathaway, your Honour.

GUMMOW J: Yes, that is right.

MR BASTEN: Sorry, I think the first sentence, though, in 36 - - -

GUMMOW J: That just means Professor Hathaway invented it all.

MR BASTEN: Well, that may be right. I am not disputing that. Can I come to paragraph 37, though, ignoring the reference to paragraph 15 above, which is footnote 82, they say:

It has been suggested above that the internal protection element is best considered and determined as an element of well-foundedness of fear.

That comes back to 14 and I will come to that.

It has been argued elsewhere that the last phrase of Article 1A(2) may be given more contemporary content by reinterpreting it in the following fashion: if the country of origin is unable to provide protection against persecution (whether the inability be despite best efforts of a weak state or on account of the total failure of the state), then the victim will fear persecution in case of return and therefore has good reason to be unwilling, owing to that fear, to avail him or herself of the protection of that country.

Now, that is a reference to Kalin at page 428 in substance of the copy of the article I gave your Honours this morning.

GUMMOW J: There are basic problems here of treaty interpretation.

MR BASTEN: Yes.

GUMMOW J: Which are never really addressed. This is about a contemporary content.

MR BASTEN: That is what I am seeking to address though, your Honour. The point I wish to - - -

GUMMOW J: Where does that come out of treaty interpretation law?

MR BASTEN: Out of treaty interpretation?

GUMMOW J: Yes.

MR BASTEN: I am sorry, what I am seeking to do in an indirect fashion is to use Kalin's article to address the concepts within the treaty and then seek to - - -

GUMMOW J: Does this notion apply, say, to tax treaties? You say this is what Australia and the United States were intending in 1976, but we have to give it a contemporary content now.

MR BASTEN: No, I am not seeking to do that, your Honour. What the UNHCR does is to identify the various ways in which it has been dealt with in the cases which appear to involve - - -

GUMMOW J: Which appear to ignore basic treaty law doctrines and not address them.

MR BASTEN: That is right, yes. If one goes to - - -

GUMMOW J: I think we are sitting here in these cases waiting for it to happen and it never happens here either.

MR BASTEN: Why I seek to go to Kalin, your Honour, is to say that Professor Kalin does address it and so does Professor Fortin. Both of them come to a historical and contextual analysis based on the travaux and the documents which predated the treaty - - -

GUMMOW J: Well, look at the Kalin article at page 428, "This presents a logical extension" - why?

MR BASTEN: I am sorry, I - - -

GUMMOW J: About line 14, second paragraph:

These changes provide strong reasons . . . This presents a logical extension -

The changes are said to be that there is an emergence of international human rights law.

MR BASTEN: Yes, that is right.

GUMMOW J: It is not going to help this woman.

MR BASTEN: I think he is stating the conclusion before he explains the analysis, your Honour. What I was going to say was that the next two pages provide the explanation of why it is appropriate to treat what was originally obviously intended as a failure of diplomatic protection in the second State, the country of refuge, as being something which can be taken account of in assessing the status of the person under the Convention, and what he says about halfway through that paragraph under "Redefining the Accountability View", is a line which starts "itself":

If the country of origin is unable to provide protection against persecution, then the victim has to fear persecution in case of return and, therefore, has good reasons not to ask that State for external protection. In other words, in such cases, he is "owing to such fear, . . . unwilling to avail himself of the protection of that country." This unwillingness is based on a very valid reason, as the inability of the country of origin to fulfil its primary task of guaranteeing peace and security to its citizens destroys the "bond of trust, loyalty, protection, and assistance between the citizen and the state [that] constitutes the normal basis of society" and is severed in the case of refugees.

Obviously I am not taking your Honours through the whole of it, but he refers to Robinson's Commentary in the 1953 text on the next page to support the view that:

someone is not a refugee in the case of "events which are being combated by the authorities, because in such cases there would be no reason for a person possessing nationality to be unwilling to avail himself of the protection -

and so on.

In contrast, such unwillingness is also justified where the fear of persecution is based on persecutory measures of non-state agents that are not "being combated by the authorities" due to an inability of the State to protect.

Then he picks up Hathaway. The remainder of that page and over the page he deals with the absence of a State or the ineffectual State, which is not the case we are presently concerned with.

Then, in his conclusion, returns to the same point that he has just been addressing, namely reconciling the protection and accountability views and he says at about point 7 on page 430, after reference to the article:

While it is true that when the 1951 Convention was elaborated, the problem of persecution by the State was in the forefront of the discussions, this provision was drafted in a flexible way that clearly allows taking into account the changing nature of persecution in the last decade and responding to it in an humanitarian spirit. To achieve this, it is necessary to take the text of Article 1A(2) seriously, namely to distinguish between the element of persecution, which does not require that it is carried out by agents of State, and the element of inability or unwillingness of the refugee to avail himself or herself of the external protection of the country of origin. As has been shown, proponents of the accountability view do not have to give up their theory. However, they should accept that the unwillingness of refugees to avail themselves of the protection of their country of origin is well founded if this country is unable to provide the minimum of safety and security that serves as a the very foundation of the legitimacy of State power.

Your Honours, a similar approach is adopted in Fortin, which is the other article - - -

KIRBY J: Could I just ask you at that point what is your answer to the questions that were raised by the Chief Justice and Justice Callinan in this case to distinguish the neglect of the police on the basis of either (a) that this is simply non-action; or (b) that the Tribunal cannot get into the detail of the economic deployment of money for police resources? How could an Australian tribunal judge that in the context of Pakistan?

MR BASTEN: Your Honour, I was to come to that.

KIRBY J: All right, do it in due course then.

MR BASTEN: Basically there are two short answers. One is that it is a factual matter for assessment by the Tribunal and, secondly, that, unless the Tribunal accepts that there is a discriminatory refusal to provide protection on a Convention ground, the claimant will not succeed. In other words, if the claimant can show no more than some ambivalent failure on occasion perhaps, she will fail. I think Justice Callinan may have acknowledged in one of his questions this morning that there really was quite a bit of material which on its face supported the argument which was put in the submissions by Mr Bollard, and it is really a question for the Tribunal whether it accepts that or not.

Your Honour, the task is probably no more difficult than assessing in any of these cases the reason, in a Convention sense, why a person appears to have suffered harm. One can think of the numerous Sri Lankan cases and so on, where these very difficult questions arise, and it is a difficult task for the Tribunal, or delicate in fact. There are other aspects of the question which I may need to return to.

CALLINAN J: Mr Basten, that material you have summarised in paragraph 3.3 of your submissions, none of it, I think, seems to suggest that economic factors or priorities would fall for consideration in this case. Am I right about that?

MR BASTEN: I would not have thought so. In putting it the other way around, your Honour, it obviously is not part of the claimant's case that they form any part of what has happened.

CALLINAN J: And if they were, one would have thought, that there would have been material. The material, if anything, is the other way.

MR BASTEN: That is so. The Tribunal might of course reject all the material - - -

CALLINAN J: There may well be cases where those sorts of considerations would exist.

MR BASTEN: Indeed. What I was going to say - perhaps I should deal with this while I am on the point. Horvath is the case which comes very close to that, because Horvath was a case in which the Convention ground was engaged by the conduct of the skinheads. Theirs was a racist attack on Roma from which Mr Horvath could not obtain adequate protection from the State to ensure that there was not a real risk of it happening again. The way that the House of Lords dealt with that, rightly or wrongly, was to say, "The State is not discriminating. No evidence that Slovakia withdraws protection from Roma. Therefore, it is sufficient that they provide what is a normal level of police protection in a civilised society" - - -

GUMMOW J: There is that word again.

MR BASTEN: I know, I paused for that reason, your Honour.

GUMMOW J: An assertion of British superiority, that is what that is.

GLEESON CJ: The word means, like us.

MR BASTEN: Yes, and if one looks at the history of the Convention there is no problem in adopting that approach, but there is, as it were, an underlying standard of what is a sufficient carrying-into effect of the States obligation to provide its citizens with protection. That is ultimately the purpose and object of the Convention, to see if that is satisfied or not. We can use terminology which is perhaps laden with values, but ultimately values are at stake.

KIRBY J: But the word that is used is "persecution" which, in the English language, is a very strong word and the dictionary definitions do appear to contemplate doing awful things, as distinct from simply failing to do it whether by default of an individual policeman or failure to spend the money or just general indifference and when one looks at that document at tab 8 that you have given us, and I have looked quickly through the section on persecution, and it does not seem to deal with the issue of neglect as distinct from - it does mention gender-based persecution, but I just wonder how one gets across the bridge from neglect into persecution.

MR BASTEN: Well, in a word, your Honour, one needs to establish a discriminatory withdrawal of service, which demonstrates a tolerance or condonation of what is being done by others.

CALLINAN J: Which involves a deliberate act or a deliberate decision not to act, but there must be an intention.

MR BASTEN: It does, yes. I know what your Honour was putting to my friend this morning - - -

CALLINAN J: There is no problem about that, I do not think.

MR BASTEN: I do not have any difficulty with that proposition.

CALLINAN J: No.

MR BASTEN: Because where you have discrimination there must be, as it were, a means of identifying a motive beyond simple failure to provide resources in a generic sense. What one must establish in a case like this is that there is a level of State protection available. Generally there is a police force or an army which protects people, but in a particular area of activity it has been withdrawn on a discriminatory basis, be it race, religion or whatever it may be.

KIRBY J: Mr Williams says it is a bridge too far, because you cannot of its nature have discrimination which is simply passive, but your contention - and does this define the difference between you - is that the Tribunal is bound to look at the four instances and other material that was before it, without that presupposition that non-action is always non-discrimination, non-persecution, and to consider whether, on the facts and all the material that was put before it in this particular case, with the four instances of going to police stations and so on, that one can derive an assumption that this inaction by police is not simply neglect or lack of resources, but is part of a culture or ethos of such neglect and withdrawal of the basic protection of the State for citizens that it is to be seen as persecution. Is that the essence of the difference between you and the appellant?

MR BASTEN: Yes, I think so, your Honour, plus the fact that he says you cannot have persecution which follows from the actions of more than one person in a juristic sense.

GLEESON CJ: Could I ask exactly what you mean by the word "State" in this connection?

MR BASTEN: Yes, your Honour.

GLEESON CJ: And I would like to compare it with words like "culture" and "ethos".

MR BASTEN: Yes.

GLEESON CJ: I suppose if this matter goes back to the Tribunal for the Tribunal to look further, we should be giving the Tribunal some hint as to what it is supposed to be looking for. Suppose the Tribunal were to find that the evidence is consistent with a state of affairs in which there is in this society a cultural condition under which people like officers of police would be profoundly reluctant to interfere in a domestic conflict, particularly one relating to the way in which a husband treated his wife. Where exactly does the State come into that?

MR BASTEN: Your Honour, that was part of my reason for suggesting earlier that one in effect has no clear dichotomy between State and non-State agents. The State, for the purposes of the Convention, is obviously that centralised political authority in a particular geographical area which for international purposes can sign conventions. The State has an internal element, obviously. It exercises control. It provides protections to its citizens as members of a civil society. It does so in a number of ways and through a number of different agencies or emanations. Some of those will obviously be part of the central government and some of them less so. When one is asking what is the State doing at the basic level, the question is asked of that centralised political authority which can both sign international instruments and put them into effect within its boundaries.

GLEESON CJ: I am not entirely sure that the concept of the State in a civil law country would equate with the concept of the government that we have.

MR BASTEN: No.

GLEESON CJ: In fact, I think we know, perhaps, no concept of the State as they would understand it in a civil law country. We just talk about what the government and agencies of the government can or cannot do.

MR BASTEN: Yes.

CALLINAN J: Indeed, the difference might even be more marked in a non-secular country where the religion is very much part of the State apparatus, and vice versa.

MR BASTEN: Yes.

CALLINAN J: That leads me to another question. If, in a country, all of the people are of one religion and the particular religion devalues, by our standards, women, then is that persecution for a religious reason?

MR BASTEN: It may be, your Honour.

CALLINAN J: Even though everybody in the country is of the one religion?

MR BASTEN: It may be. It may be possible to formulate it in that way. Your Honour and Justice Gummow both asked questions about religious belief this morning and I was going to come and deal with those in the context of the Convention. Could I perhaps come back to that aspect of the matter? I am sorry, I am not sure whether I had finished answering your Honour the Chief Justice's questions about the State apparatus, though.

GLEESON CJ: No. You may have a society in which there is no need for any agency of government, or any government, to take a positive decision at all in order to produce the consequence that police do not interfere in quarrels between husbands and wives.

MR BASTEN: Yes.

GLEESON CJ: That may be a basic part of the culture. You do not need government policy about that.

MR BASTEN: No. It may, nevertheless, be correct to say that where there is serious harm inflicted on a particular part of the citizenry as a result of that non-action by those who might control the police force and decide not to do so, that they are, as it were, complicit in the harm which is caused. It may even be - - -

GLEESON CJ: Justice Gummow put to you this morning a question in which he pointed out that we often assume an efficient government.

MR BASTEN: Yes.

GLEESON CJ: We may also assume what, by the standards of many people, is an interfering government.

MR BASTEN: Yes.

GLEESON CJ: There may be parts of the world in which it would never occur to anybody that it was a proper function of government to interfere in certain kinds of dispute or domestic situations.

MR BASTEN: Yes, but that point has a number of different aspects to it in terms of the Convention. If one brings it back to the definition within the Convention, then there is no doubt, I would have thought, in the paradigm case that the State apparatus which declines to intervene when, as I think some of the evidence shows here, 70 per cent of women in police custody are abused or raped, then there would be persecution within the terms of this Convention, whether it was culturally acceptable within that society, or not, because we are, in a sense, imposing upon that society an external view of what is and what is not acceptable - - -

GLEESON CJ: I do not have a problem with that because you are talking about people who are in the custody of government authorities.

MR BASTEN: Yes.

GLEESON CJ: But what about husband and wife in a situation where you need no government decision or policy to produce the result that police would be very reluctant to interfere in a quarrel?

MR BASTEN: I accept that, your Honour. There are two aspects to that, though. One is that if it is a question of inaction or action, then it depends at what level one is looking. My example of the police activity may still have been the result of inaction at a central level, namely the failure of the ministry or whoever the director of the police is to control them. So, it is really just a further step down a scale, as I would understand it.

Let us suppose, for the purpose of argument, that there is a general law prohibiting assault or rape or whatever it may be in the community. If that law is not applied without discrimination on a Convention ground, then the victim of a relevant assault can claim protection under the Convention, we would say, even though it may be that the way in which that happened did not require the State to positively ensure that withdrawal of protection was occurring in that way.

Obviously, if there was only a random or arbitrary set of circumstances of which the State, perhaps, could either not take action or did not know, one would have a different situation, but that is not the situation your Honour is positing.

GUMMOW J: Can I ask you some questions about the text?

MR BASTEN: Yes, your Honour.

GUMMOW J: What is the significance in the definition, A(2), second paragraph, that is to say - - -

MR BASTEN: More than one nationality?

GUMMOW J: Yes.

MR BASTEN: Only that - - -

GUMMOW J: Surely that supports the construction first referred to in the UN document.

MR BASTEN: The external protection construction?

GUMMOW J: Yes.

MR BASTEN: I would not quibble with the proposition that the whole of the article should be read as referring to external protection, your Honour. It is just the question of the consequence.

GUMMOW J: What about C(1), he can reavail "himself of the protection of the country".

MR BASTEN: Yes, I agree.

GUMMOW J: If we just look at the recitals for a minute, the first one talks about discrimination:

shall enjoy fundamental rights and freedoms without discrimination.

What "fundamental rights and freedoms"? Then you go to the second recital:

to assure to refugees -

so it assumes people are refugees -

the widest possible exercise of these fundamental rights and freedoms.

MR BASTEN: That is within the country of refuge, in effect.

GUMMOW J: Yes, and that is what the rest of the Convention is about. If you look at Chapter III, juridical status, welfare, employment, social security, all that sort of stuff.

MR BASTEN: The major thrust of the Convention is undoubtedly to ensure that within the country of refuge, these people enjoy a level of protection not equivalent to citizens but seen to be adequate. If one looks historically at the way the Convention came about, that is entirely explicable because it only referred to past flight, as it were. When the 1967 protocol was introduced to allow for its future operation, none of that changed. One has to allow, of course, for the operation of the Convention beyond the date of its commencement as a result of the protocol.

GUMMOW J: But you are still assuming, are you not, always a person who is outside the country of nationality? So this person has arrived somewhere in a Convention country.

MR BASTEN: Yes, and our domestic law treats it in the same way. One can only get a protection visa if one is in the migration zone, which may or may not be somewhere in Australia - - -

McHUGH J: But resolving this question may be of fundamental importance in this and in similar cases, because on one view the persecution referred to in the definition can be private persecution. The role of a State comes in only in respect of the latter part of the definition. On that view you will be in serious trouble on the findings of the Tribunal, but at some stage it seems to have been worked into the notion of "persecution" the idea that there is State involvement in it. When did that come into it?

MR BASTEN: But it came the other way, your Honour. This is the French, German and Swiss approach: one starts with the assumption that it is only the State that can persecute.

GUMMOW J: I am not sure that is right. Just assume for a minute it is not right. Is there not a great false debate going on?

MR BASTEN: Yes, but I meant historically, I am sorry. The underlying assumption was that it was the State which persecuted. That was then, as it were, treated as too narrow an approach, at least in a majority of countries, which have accepted that others can persecute if the State tolerates - whatever the terminology your Honour used in Chan was. So that it is really to put it, with respect, ahistorically to ask the question in that form.

McHUGH J: It may be that in the early days all the persecution dealt with was that of the State, particularly, you have to remember, because before the protocol of 1973 the definition of "persecution" was limited by the opening words which referred to a date in 1951.

MR BASTEN: 1967, yes, that is right.

McHUGH J: So you were looking at events prior to 1951 and they were State. After the 1967 amendment by which those words were omitted, then it was, I suppose, possible in practice for the acts of private individuals to be regarded as persecution. If you just look at the definition, there is no reason at all why the persecution could not be that of private individuals.

MR BASTEN: No, that is right. We would say, your Honour, that if one looks at the concept of "persecution" - and we rely on this point, I think - there is no reason to suppose that it is either private individuals, the State or any exclusive part of those. In other words, there is no reason why it cannot be affected by a combination of State and - - -

McHUGH J: That may be but if you then take up Justice Kirby's point and see persecution as having a need for an intention or something similar, then in a case like the present you miss out on the issue of persecution because there is no persecution for a Convention reason, even though the State has failed to protect them.

MR BASTEN: Only if one either looks for persecution directly, in the motivation of the police officer or the husband or whoever it may be, there is no reason, we would say, why if the State discriminately withdraws its protection, that cannot be an element of the persecution sufficient to engage the grounds. We have to put it on that - - -

McHUGH J: I think that is clear enough. What about - - -

MR BASTEN: I cannot get up in Horvath, as it were, where the State is neutral, on this argument.

McHUGH J: Yes.

GLEESON CJ: And the relevant parts of the Convention do not actually refer to the State at all, do they? They refer to the country, the protection of the country.

MR BASTEN: Yes, of nationality, that is right.

GLEESON CJ: I have not seen any support for what I am about to suggest to you, but I wondered if you had come across any. When I looked at those words I wondered whether the expression "the protection of that country" was referring to a hypothetical relationship. There was an old-fashioned expression in which you might refer to a woman returning to the protection of her husband, and that was a reference to a construct, if you like, a hypothetical relationship that should have existed. She might say, "I don't wish to return to the protection of my husband because he mistreats me." There is no protection in fact, but is it possible that the expression "the protection of that country" is referring to the sort of thing you ought to be able to expect?

MR BASTEN: Yes, and your Honour, may I illustrate the point by going to Fortin, which I was going to go to a little while ago at tab 36 of our bundle and, in particular, the conclusions which are at page 342. In doing so, your Honour, may I - partly in answer to your Honour the Chief Justice, there are three papers, the Fortin article, the Reinhard Marx and the Kalin article, all of which discuss the historical development of this Convention and indicate why there are particular forms of words used. They are largely taken from earlier instruments and I have not taken your Honour through it, but what your Honour says is, nevertheless, correct.

In the conclusions, he refers, about halfway down page 575 of the article, to Grahl-Madsen, and in that quotation, he says:

It goes without saying that the definitions of the term `refugee' - - -

McHUGH J: What page is this?

MR BASTEN: I am so sorry, page 342 of the bundle, it is behind tab - - -

McHUGH J: Yes, I have it.

MR BASTEN:

But with regard to the general notion of `refugee' as we see it -

this is the extract from Grahl-Madsen in the middle of the page -

the lack of (diplomatic and consular) protection is but a symptom of a political controversy, a deep-rooted conflict between the State and the individual, which means that the normal relationship between a State and its national (or resident) has turned into its negation, namely the relation between an oppressor (or political avenger) and his (actual or potential) victim.

Then over the page, at the top of page 576 of the article, it is in the second line:

It is entirely conceivable that a person may have well-founded fear of being persecuted upon his eventual return to the country of his nationality, yet he may have nothing to fear at the hands of the members of the foreign service of that country.

Either diplomatic or consular protection element.

This seeming flaw in the coherence of the definition may be addressed through a proper identification of the rationale for the approach. Considering that the enjoyment by nationals of diplomatic protection carries with it the possibility (from the point of view of law) that the person concerned be expelled to his or her country of nationality, it may be concluded that persons who avail themselves of the diplomatic protection of their country of nationality are, implicitly, accepting the risk of being expelled to that country. Seen under this light, the incompatibility between refugee status and enjoyment of diplomatic protection can be understood. The refugees' unwillingness to avail themselves of the diplomatic protection of their country of nationality needs not be associated to a fear of being persecuted by those authorities, but to a fear of being exposed to expulsion to their country of nationality and, as a result, of becoming a target for persecution by non-State agents.

That is, ultimately, the reconciliation of the two approaches which we would respectfully adopt, and it is - - -

McHUGH J: At common law, and I think also under international law, the State had an obligation to protect its nationals even when they were overseas.

MR BASTEN: Yes.

McHUGH J: More than that, to protect anybody who carried a passport, as Joyce found, even though he was not a British national.

MR BASTEN: Yes, and that is the concept of diplomatic and consular protection which, as we would understand it, those who have looked at these things agree, is the essential element of the term "protection" in this Convention. That is what it was intended to refer to.

All I am seeking to say is that one achieves the legitimate course of looking to whether or not protection will be available on return by that approach that Fortin summarises and that, of course, is consistent with the question which must be asked of the State of Refuge under Article 33, namely, what will happen if one refoules the person, expels or returns the refugee, to the frontiers of the territories where his life or freedom would be threatened. That is the ultimate protection obligation in the Convention.

McHUGH J: So, how was it supposed to work then back in 1951? Was the notion that you are outside the country because of persecution, but you were unwilling because of that fear to put yourself in the hands of your embassy?

MR BASTEN: Yes, if there was one, yes.

McHUGH J: If there was one, to take you back. It seems a strange notion.

MR BASTEN: Yes. It is less strange if one reads the historical development of the Convention and I obviously cannot take your Honours through those papers now, but they do provide - - -

McHUGH J: Well, they were earlier treaties, were they not? There was no question about persecution or anything like that in it, was there? Well there may have been, but the real thing was that you just did not get protection.

MR BASTEN: That is so, yes.

GLEESON CJ: But if the paradigm case for the operation of this definition is a case of persecution by the government, then the concept of being unwilling to avail yourself of the protection of the persecutor must be referring to a hypothetical construction. I mean, if the paradigm case for this Convention was somebody was - probably all the kulacs had disappeared by then - but some kulac who was on the run from the Soviets in Russia and that person had a well-founded fear of being killed on the basis that he was a kulac if he was caught and went back to Russia, what does it mean to talk about that person being unwilling to avail himself of the protection of the USSR?

MR BASTEN: It may be a case in which one would use the "unable"clause, your Honour, on the basis that all protection had been lost, as it were.

GLEESON CJ: No, it assumes the protections there and says you are unable to avail yourself of it.

MR BASTEN: Unable - - -

GLEESON CJ: Unable to avail himself of the protection of the USSR.

MR BASTEN: I am not sure, your Honour, that it necessarily means that the protection is there. You may be unable to avail yourself of a protection which does not exist, in other words; should have existed, but does not. But I am not sure whether I need - - -

GLEESON CJ: The concept of availing yourself of the protection of your persecutor, which is the way this would work in the paradigm case, requires some flexibility of mind.

MR BASTEN: Yes.

GLEESON CJ: You really cannot interpret that precisely literally, can you?

MR BASTEN: I do not think so, your Honour, but given Article 33 and the obligation thereunder, one must at least give it that meaning, we would have thought.

There are obviously difficulties in providing what might be thought might to be obvious and literal constructions to some of these international Conventions. This, as the Court is well aware, is a case where Australia has simply adopted the obligations under the protection as the test under domestic law, so we are inevitably faced with answering those difficulties.

May I just come back to one other aspect I was going to deal with in answer, I think, to your Honour Justice McHugh's question to me. I really wanted to say two things about Islam, and perhaps I can do them together. The first is that, as we indicate in our written submissions, that passage in Islam [1999] 2 AC at page 653 to 654 where Lord Hoffmann sets out the example of the Jewish shopkeeper attacked by a gang is something that we accept, but we acknowledge there are two problems with it. One is that by giving such an emotionally loaded example, it may be said that his Lordship is dealing with the obvious. The other problem is that it is a case in which we bring all our own knowledge of what was an historically precise situation as if it were part of the hypothetical which his Lordship gives. We would respectfully submit that if one puts to one side that which is not expressed in his Lordship's example, one comes yet to a correct understanding of how the Convention would have worked in those days had that situation arisen.

The other passage that I wanted to refer to is at page 658E in the speech of Lord Hope where in the middle of the page his Lordship says in the short paragraph beginning:

The unchallenged evidence in this case shows that women are discriminated against in Pakistan.

And so on. The third sentence:

The reason why the appellants fear persecution is not just because they are women. It is because they are women in a society which discriminates against women. In the context of that society I would regard women as a particular social group -

Now, the same may be said, with respect, of the concept of "persecution". One cannot abstract the concept of persecution from the social context in which reliance is placed upon it.

KIRBY J: I am still not clear what your particular social group is though. Ultimately, I think it is reasonable that you have to define it. Is it all women in Pakistan; is it all women in Pakistan who have abusive husbands; is it all women in Pakistan who have abusive husbands who have gone to the police and have not been given protection? What is the group that you are propounding?

MR BASTEN: Your Honour, we can define it. There is a danger in us doing more than saying there are bases upon which it could be so defined because, as this Court has said, ultimately it is a question of fact for the Tribunal. If, however, the Tribunal accepts the proposition that the withdrawal of protection is discriminatory in the sense that it is a withdrawal of protection from all women in Pakistan, then that would be a legally defensible particular social group and it does not of course mean that all women in Pakistan are subject to persecution because the withdrawal of protection does not bite except in relation to women who themselves have a well-founded fear that they will be abused.

That leads me to another point - and it perhaps the point that your Honour the Chief Justice was seeking to suggest this morning. The alternative analyses of Justice Lindgren are not, as we would understand them, really alternatives because neither of them presupposes an abstract situation in which there is no violence. It is protection from some violence which must be established at least as a fear on the facts.

GLEESON CJ: I must admit, when I first read it, I thought it was just two different ways of expressing the same idea.

MR BASTEN: Yes. Well, we agree, with respect. Ultimately, we would say it comes down to that. One of the difficulties, of course, is that he is trying to provide an analysis - and perhaps I am answering your Honour Justice Kirby in an abstract sense, because the Tribunal not having dealt with it in this way, we do not know what the circumstances are in Pakistan as presently presented and there are some dangers in making some assumptions about these things and members of the Court have referred to that this morning.

KIRBY J: Yes, but you are the applicant for refugee status. You are the one who has to define the basis on which you are seeking the protection visa. It does not seem unreasonable to expect you to propound what you contend on the evidence before the Tribunal was the foundation for saying you were a member of a particular social group.

MR BASTEN: Undoubtedly, your Honour, and the point that we seek to make in that regard is simply by reference to the material which was presented to the Tribunal and which is, as it were, addressed in two sets of submissions prepared by the solicitor, unusually comprehensive and helpful submissions, one might think, at pages 82 and following - that was the first set - and at pages 98 and following - the second set.

Your Honour, I suppose I can say two things about them. One is that they put forward a number of different suggestions which will depend upon the facts as found by the Tribunal. I do not know how much detail I should go into, but there was evidence given before the Tribunal to the effect that this woman had been charged under the Hudood laws. If she had been charged, then it was necessary to consider that matter as part of her case. Of course, the Tribunal could find that she was not charged. It is difficult to know whether the Tribunal made a finding about that.

If one goes, for example, to page 90 of the submission, the Hudood laws are relied upon at lines 40 to 45 and following as themselves reinforcing societal attitudes towards women, even if they do not directly apply. That argument gained support, at the top of page 91, from the respectable source, one would think on any view, of the US Immigration and Naturalization Service. Now, all I am saying, your Honour, is that if she was not subject to prosecution, as the finding of fact ultimately is, nevertheless, it is possible to argue that as a woman in Pakistan, she suffered as a result of those laws.

There are other submissions, for example, at pages 103 and following, to similar effect. But how one ultimately defines the group may depend upon whether the Tribunal accepts that it is only married women from whom protection is withdrawn or whether it is all women or whether it is women without alternative protection of a male.

KIRBY J: If it is all women, it is about 190 million people, I suppose.

MR BASTEN: Yes.

KIRBY J: If it is all married women it is probably 100 million or maybe fewer. It is an awful lot of potential refugees.

MR BASTEN: But a potential refugee must have a well-founded fear of persecution. Not all of those women will have, because they will not fear violence at the hand of an abusive husband. His Honour Justice Hill referred to an alcoholically abusive husband. There is no evidence of alcohol, but one knows what his Honour was getting at. But, your Honour, I think Justice McHugh made this point in one of the other cases. The concepts of race, religion and nationality themselves may involve huge numbers of people in particular countries, including a majority in a country which is run by a totalitarian government so that we would not think that the mere fact that there was a potential group of that size was significant.

Might I say, your Honour, and perhaps it does not matter for this purpose, but in a paper by Haines, which we have included in the bundle, there is a reference, and I will find the reference if I need to, to the fact that these gender-based claims have been accepted in Canada for over a decade and the increase in the number of successful claimants is insignificant so that we would not, frankly, see that there is any basis for a floodgate argument, even if that were relevant to the construction of the Convention, which we would obviously say it is not, unless there is some better evidence than that to support it.

KIRBY J: What cases in Canada and in the United States can you call on to get you across the bridge in terms of the concept of persecution, including neglect?

MR BASTEN: We do not put it simply - well, your Honour, says neglect. Obviously we put it in the sense that the failure of the State to provide protection is on a discriminatory basis. Neglect is neutral as to that, so we need to take it a stage further than that. In Canada, your Honour, Ward's Case in the Supreme Court refers to sex as a basis for establishing a particular social group although it does not go to the detail of domestic violence claims, I think.

Perhaps the simplest way to deal with it, your Honour, is to note that a lot of this is summarised in a paper, partly at page 88 of our bundle, which contains the references to women asylum seekers in Canada, to which I referred at the penultimate paragraph on that page. We have given in our written submissions some of the authorities, your Honour. We have included a reference to Kasinga at tab 17, which is a US Board of Immigration Appeals case.

It is not always easy to find all the cases, which is why we put in some of the monographs and academic articles which summarise the approach, but at tab 16 - and perhaps this is the simplest place to go in one bite, as it were - there is a recent decision of the New Zealand Refugee Status Appeals Authority which effectively summarises the state of legal decisions across equivalent countries as at 16 August last year, so it is reasonably up-to-date.

Your Honours will see that those cases - there is a general discussion of the law starting at paragraph [43] at page 131 and this is all a discussion in the context of a domestic violence case for an Iranian woman and in relation to the particular social group approach there are a number of cases cited at paragraph [90] and following, including the Shah's Case in England, earlier New Zealand cases at paragraphs [100] and following and picking up this case - - -

KIRBY J: Is there something wrong in the numbering there? It just seems to go from [84] on page 135. On 136 there are no numbers and then 137 it is [91]. Maybe those paragraphs on 136 were numbered.

MR BASTEN: Your Honour, paragraph 86 starts at the top of page 135 and paragraph 87, the back of page 136. It is a double-sided print, and the pages have only been numbered in our numbering on the front of each page. Does your Honour not have a double-sided page?

KIRBY J: Yes, I do, but in my copy 136 has down the bottom paragraph 84. There are no paragraph numbers on 136, then 137 picks it up at 91, but I assume that is because those paragraphs were numbered but somehow the numbers have slipped out.

MR BASTEN: I am not sure, your Honour. Could we check with your Honour's associate?

KIRBY J: It is just that I want to make sure. If this is the best summary of the up-to-date jurisprudence of other countries like ours, I would like to have it.

MR BASTEN: I understand that, your Honour. If your Honour sees the original numbering at the top of the page, it should be a number of pages out of 27, and it should be - - -

KIRBY J: Yes. Mine goes from 19 to 21.

MR BASTEN: In that case we need to supply further pages, I am sorry. There must have been a - - -

KIRBY J: Looks as though they have photocopied odd pages.

MR BASTEN: I am glad to know there is an error, your Honour, but I do apologise. We will provide proper copies with that because it is a significant summary of the case and I think in part answers your Honour's question as best we can. We note in footnote 56 of our submissions that there are numerous Canadian authorities which are available, although only in summary form, on the Internet. We have not been able to get copies, but they are apparently all refugee claims by women subjected to domestic violence.

GLEESON CJ: What exactly is the task we are setting for the Tribunal if we send the matter back to the Tribunal? Is it possible to state that in a summary form?

MR BASTEN: Your Honour, the task would be to assess whether, on the material available to it, the Tribunal is satisfied that the claimant has a well-founded fear of persecution as a result of the withdrawal from her of State protection from familial violence on the ground of membership of a particular social group defined on the basis either of her gender, as a woman in Pakistan, or as a member of some lesser category, more confined category, if the Tribunal is of the view that that is an appropriate group on the evidence.

GLEESON CJ: Now that expression, "withdrawal of State protection", would include laws that do not provide protection and government policy against enforcing laws that do provide State protection. What if neither of those could be shown but there could be shown an entrenched cultural reluctance to interfere in relations between husband and wife?

MR BASTEN: Your Honour, I know why your Honour puts it that way, but the question for the Tribunal would be whether that went so far as to constitute an absence of State protection from what would otherwise be criminal violence, that absence being known to the State and it taking no steps to ensure that its laws of general application were generally applied.

CALLINAN J: You accept that in there is motivation or intention, because the word "withdrawal", in the sense in which you use it, really involves either of those, I think.

MR BASTEN: Yes, it does, yes. I do accept that, your Honour, in the sense of - I mean, "intention" is a word of many meanings, but a sufficient - - -

CALLINAN J: Or perhaps "deliberate" might be - I do not know whether that - - -

MR BASTEN: Yes. It has to evince a sufficient causal nexus for the purposes of the Convention terminology "by reason of". That is probably the most accurate way, although perhaps unrevealing way to put it.

CALLINAN J: No, I think that is helpful.

MR BASTEN: That would be the test we would say anyway.

GLEESON CJ: Certainly if the facts found or asserted to be true by the House of Lords in Islam were found by the Tribunal, that would seem to be sufficient on your argument.

MR BASTEN: Yes, it would be, your Honour. I think if one goes back to the Court of Appeal decision in Islam, there is a more complete statement of the facts which were found by the Immigration Appeals Tribunal in that case. I do not wish to go into a debate as to whether the House of Lords were finding facts, but I think there were further matters dealt with by the Tribunal in that case. Certainly it is true in Horvath, for example, that the facts are not apparent from their Lordships' judgments; one really needs to go back to the Court of Appeal.

Your Honours, the only other issue that I was going to address was a question concerning the role of religious beliefs, which I think both your Honour Justice Gummow and Justice Callinan asked in one form or a similar form this morning. On my understanding, the question was whether, if something was done in a bona fide execution of a religious belief, which involved the imposition of violence, for example, on a woman, a prohibition of that activity would itself constitute persecution. There are perhaps a number of answers to that proposition. Firstly it is undoubtedly true that there can be a clash of principles, where principles are stated at this level of generality. It is also true that one piece of conduct can give rise possibly to two separate claims and, your Honours, a classic example perhaps was Jeremiah v Ministry of Defence, as a discrimination case [1980] 1 QB 87, where in an employment situation it was said that a woman and a man, who have been treated differently, might both be able to reasonably complain of discrimination.

It is possible, in theory, that two people could complain of persecution on different grounds if, in fact, a clash of that kind arose, but I suppose it is hard for us to accept that the application of a general law of a criminal kind, which suppressed an extreme religious belief to the effect that one was entitled and perhaps obligated to impose violence on one's spouse, would ever constitute persecution for the purposes of this Convention. I know that it is a hypothetical question and no assumption is being made, but there is an underlying premise that it might be consistent with Islam that such an approach be adopted.

Obviously this would be a matter for the Tribunal if it were to go back, but at page 94 of the appeal book there is a discussion at lines 15 to 25 in a human rights watch report, which was put before the Tribunal, as to the proper analysis of a religious law, which involved a contravention of a guarantee of equal protection on the basis of gender and that might well be an approach which would commend itself to a Tribunal dealing with such a case and this is even more intriguing, although hypothetical perhaps. At page 25 there is reference to a constitutional amendment Bill, at line 30, which was apparently introduced in 1998, to make Shariah "the supreme law of Pakistan" with the effect of overriding any other constitutional protections, including against discrimination.

GUMMOW J: Yes, that is what I had in mind.

MR BASTEN: We do not know what happened to that. That was only two years ago, of course.

GLEESON CJ: Well, just a moment. There has been a bit of water under the bridge since then, a bit of military law floating around now.

MR BASTEN: That may well be right, your Honour, and all these things - that is why I am saying it is all hypothetical. The point I was going to make was that the Tribunal would need to decide these questions in accordance with the state of affairs at the time of its decision.

CALLINAN J: Because I do not know whether that amendment Bill was passed.

MR BASTEN: No, I do not either, your Honour. The irony which I was going to just note was at the bottom of that page - and this was no doubt under Prime Minister Benazir Bhutto to which your Honour the Chief Justice referred - in 1994 a Commission of Inquiry was established to:

"review all existing laws which are discriminatory to women . . . and to recommend amendments to bring laws and rules "in accordance with the injunctions of Islam -

so at least some people in Pakistan would not, apparently, accept that Islam is inherently discriminatory in its tenets

CALLINAN J: Except some people, they might take a different view of what constitutes discrimination.

MR BASTEN: Of course. I was just making the point that we must not, perhaps - your Honour the Chief Justice referred to the thimbleful of knowledge, but ultimately, of course, it is not a matter for this Court to worry about, what the ultimate factual findings would be in that regard, but assumptions, perhaps, need to be made with care. Your Honour, those are our submissions.

GLEESON CJ: Thank you, Mr Basten. Yes, Mr Williams.

MR WILLIAMS: We have nothing in reply.

GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 3.29 PM THE MATTER WAS ADJOURNED