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21 November 2003
To the Secretary of the Senate Select Committee on Ministerial Discretion in Migration Matters
My name is Rebecca Blaxland and I am a law student at the University of Technology (UTS) Sydney.
As part of the Law Honours programme from January – July 2003, I researched and wrote a 15,000 word
thesis titled “A proposal to add ‘gender’ as a sixth category in the domestic law definition of refugee”. I
would like to submit this thesis to the Committee, in the hope that it is can be both informative and helpful
for the Committee and assist it to achieve its goal of inquiring into ministerial discretion.
In summary, my thesis focuses on the plight of refugee women, and advocates for substantial changes to
the definition of “refugee” in domestic law. The paper is divided into four parts:
Part I is brief discussion of the general purpose and basis of refugee law. It highlights that the law was
initially intended to provide refuge for all individuals facing persecution, regardless of their sex. Part II
analyses how refugee law has developed to become gender biased through a case study of how each
element of the Refugee Convention has been judicially interpreted in a gendered manner in Canada, the US
and Australia. The aim of this section is to highlight why there was a dire need for proactive measures to
make refugee law gender inclusive. Part III recognises the attempts made in all three jurisdictions to
remedy the gender bias inherent in their refugee law, and then goes on to asses the effectiveness of these
initiatives. The section concludes that the initiatives in each jurisdiction have failed and that refugee law
still excludes gender specific claims of women. Part IV submits that, in light of this failure, law reform is
now the only way forward. It is proposed that the domestic law definition of “refugee” in these three
jurisdictions should be amended to include ‘gender’ as a distinct category.
I hope that my thesis can be of some assistance to the committee.
Yours sincerely
Rebecca Blaxland
“A PROPOSAL TO ADD ‘GENDER’ AS A SIXTH CATEGORY IN THE DOMESTIC LAW
DEFINITION OF REFUGEE”
REBECCA BLAXLAND
November 2003
TABLE OF CONTENTS
1
INTRODUCTION
4
Part I……………………………………………………………7
2
3
4
THE PURPOSE OF REFUGEE LAW
FEMALE SPECIFIC EXPERIENCES
THE BASIS OF REFUGEE LAW
7
7
9
Part II…………………………………………………………. 11
5
5.1
5.2
5.2.1
5.2.2
HOW ‘GENDER NEUTRAL’ REFUGEE LAW HAS DEVELOPED TO BE
‘GENDER BIASED’: WHY FEMALE SPECIFIC EXPERIENCES ARE
OUTSIDE ITS SCOPE
11
The foundation of a gendered law
The gendered development of refugee case law: development within a male paradigm
Theoretical reasons why refugee law developed with a gender bias
The gendered judicial interpretation of the elements of the Refugee Convention
11
12
12
14
Part III…………………………………………………………31
6
7
7.1
7.2
7.3
7.4
8
INTERNATIONAL AND DOMESTIC EFFORTS TO REMEDY THE
GENDERED STATE OF REFUGEE LAW
31
THE EFFECTIVENESS OF THE GUIDELINES IN MAKING REFUGEE
LAW “GENDER SENSITIVE”
34
FGM
Repressive social mores
Rape
Domestic Violence
34
37
41
44
THE IMPACT OF RECENT LEGISLATIVE CHANGES ON THE ‘GENDER
SENSITIVITY’ OF US AND AUSTRALIAN REFUGEE LAW
54
Part IV…………………………………………………………59
9
9.1
9.2
9.3
WHY LAW REFORM IS NEEDED
Refugee law post Guidelines is not gender sensitive
Legislation in the US and Australia
The pervasive ‘cultural hook’
10 HOW TO REFORM THE LAW
REFERENCES
59
59
59
60
62
63
1 Introduction
Refugee law1 is intended to be used as a tool by an individual in need. It provides a
practical solution for people who are in fear of suffering persecution. Unfortunately
however, this solution is not available for half of the world’s refugees.
Women currently constitute approximately 50% of the world’s refugee population2 and
yet many are excluded from the umbrella of protection offered by refugee law. ‘Women
specific experiences’ such as female genital mutilation (FGM), rape, domestic abuse at
the hands of a male intimate and repressive social mores 3 are commonly considered to
fall outside the parameters of refugee law and thus women who are subject to these
experiences are left without international protection.4
The tendency of refugee law to deny refugee status to applicants with gender specific
claims5 has been recognised both internationally and domestically, and moves to remedy
this propensity have been made at each level. However, because international law is non-
The term “refugee law” is defined in this paper to mean a collective body of materials comprised of the
Refugee Convention (see below n 18), the Optional Protocol (see below n 19), and the domestic case law
and legislative enactments of a Country pertaining to refugees
2
Thomas Spijkerboer Gender and Refugee Status, England, 2002 at 15. The exact percentage cannot be
accurately ascertained as there is a lot of conflicting information. Academics often quote the figure that
women make up 75% of the refugee population. However Spijkerboer argues that this percentage includes
both women and children, and instead suggests that refugee populations more or less mirror the population
of refugee-producing regions as a whole. As such, women make up approximately half of the world refugee
population. The UNHCR agrees with this figure (see www.unhcr.ch)
3
Men do not experience the kinds of harms listed here. Rather, they are solely suffered by women. This is
not an exhaustive list and there are many other types of female specific experiences including honour
killings, bride burning, and forced steralisation. However, FGM, rape, domestic violence and repressive
social mores appear to provide the most common bases for refugee claims. As such, this paper will only
focus on how refugee law treats these four female specific experiences. In demonstrating how the law
excludes such claims, it will be argued that the law excludes a majority of female claims
4
It is acknowledged that some women face the same persecution as men, and that these women are readily
granted refugee protection. However, the law’s treatment of such claims is not to focus of this paper. The
central concern is how refugee law deals with claims based on harms suffered only by women
5
Properly defined the term gender “refers to the relationship between women and men based on socially
defined roles that are assigned to one sex or another. It is to be distinguished from sex, which is a biological
category”. In this paper, the use of the term ‘gender’ is limited. It is defined to refer to ‘females’ or
‘women’ only. The term ‘gender specific claim’ is defined as the ‘claim of a woman based on a unique
female experience’. Please note that this term does not encompass claims based on homosexual
persecution. While there has been a recent suggestion to include such claims under the head of ‘gender
specific claims’, a discussion of this issue is outside the scope of this paper. However, see Jenni Millbank
Imagining Otherness : Refugee Claims on the Basis of Sexuality in Canada and Australia (2002) 26(1)
Melbourne University Law Review 144 for further information
1
binding,6 any initiatives undertaken are largely irrelevant for the individual refugee. What
is important to an applicant is the law of the country in which they are claiming refugee
status. Thus, the focus of the present paper is on domestic refugee law.
Case studies will be undertaken of the law in three refugee – accepting countries,7 namely
Canada, Australia and the United States (“the US”). These counties have the common
feature that they all recognised their domestic refugee law excluded the gender specific
claims of women and made moves to remedy the situation.
Part I of this paper is brief discussion of the general purpose and basis of refugee law. It
highlights that the law was initially intended to provide refuge for all individuals facing
persecution, regardless of their sex. This section then goes on to identify various female
specific experiences that have typically been considered outside the scope of refugee law.
Part II analyses how refugee law has developed to become gender biased. This analysis is
done in two ways. Firstly, various theoretical bases are offered as to why the claims of
women are commonly excluded. Secondly, there is a discussion of how each element of
the Refugee Convention has been interpreted in a gendered manner in Canada, the US
and Australia. The aim of this section is to highlight why there was a dire need for
proactive measures to make the law gender inclusive.
Part III recognises the attempts made in all three jurisdictions to remedy the gender bias
inherent in their refugee law, and then goes on to asses the effectiveness of these
initiatives.
6
International law derives from a variety of sources including international Conventions (also known as
treaties), international custom and judicial decisions (for example, decisions of the International Court of
Criminal Justice). Since 1980, which began the international decade for women, there have been a number
Conventions created that relate to refugee women. These include the “Convention of Elimination of all
forms of Discrimination against women” (CEDAW) (1980), together with its optional protocol (1999) and
the “Declaration of Elimination of all Violence Against Women” (1993). Other international moves include
the UNHCR Guidelines on Refugee Women (See Debora Anker Women Refugee’s: Forgotten no longer?
32 SANDLR 771 for a discussion of international efforts to remedy the gender bias in refugee law)
However, the content of these instruments only be binding if a given country chooses to adopt and ratify it
into its domestic law. Otherwise, they are largely superfluous. See section 6 of this paper generally and n
142 specifically for a further discussion of this issue
7
There is a well entrenched ideology in refugee law that countries are either “refugee – producers” or
“refugee – acceptors”. Western nations firmly place themselves in the latter group. Audrey Macklin
Refugee Women and the Imperative of Categories (1995) 17 HRQ 213 at 265
Over the last decade, each country enacted “Guidelines”8 which addressed how to make
refugee law gender inclusive and sensitive to the specific plight of female claimants. The
central investigation of this paper is whether the Guidelines have had their desired effect.
By comparing case law both within and between jurisdictions that has developed
subsequent to when the Guidelines were issued, it will be argued that the Guidelines have
failed. Refugee law still excludes gender specific claims of women.
Part IV submits, in light of this failure, that law reform is now the only way forward. It is
proposed that the domestic law definition of “refugee” in these three jurisdictions should
be amended to include ‘gender’ as a distinct category. Only then will refugee law be
analogous to its original humanitarian intent.
8
see section 6 of this paper for a discussion of the Guidelines
PART 1
2 The Purpose of Refugee Law
Refugee law has developed to provide surrogate international protection to individuals
when there has been a fundamental breakdown in state protection resulting in a risk of, or
actual perpetration of, serious human rights violations.9 Refugee law offers an individual
remedy to a person who fears conduct which amounts to persecution. The remedy is that
a victim of such violations can seek ‘refuge’ in another country.
The central aim of refugee law is to protect people’s human rights. The Supreme Court in
Canada (Attorney General) v Ward,10 held that “[it is] the defence of human rights and
antidiscrimination that form the basis for the international refugee protection initiative”.11
James Hathaway suggests that “even the most conservative view of human rights admits
freedom from cruel or inhuman treatment as part of the 'core' of human rights protected
under the Refugee Convention”.12 Thus, when an individual’s enjoyment of their rights
is being curtailed, refugee law offers an avenue of recourse.
However, refugee law does not offer protection from all instances of human rights
violations. It is only available as a remedy in very limited circumstances.
3 Female Specific Experiences
There are certain experiences to which only females can be subjected as noted by Linda
Hossie: “….the situation of women is unique…. [they suffer] persecution that has no
parallel in men’s experience”.13
9
Eve McCabe The Inadequacy of International Human Rights Law to Protect the Rights of Women as
Illustrated by the Crisis in Afghanistan (2000-2001)UCLA J.Int’l L & Foreign Aff. 419 at 427
10
(1993) 2 SCR 689
11
ibid at 690
12
James Hathaway The Law of Refugee Status Canada 1991 at 112
13
Linda Hossie “For Women, Oppression is often a way of life”, Globe and Mail, 5 February 1993 A15
quoted in Macklin, above n 7 at 257
The types of experiences that are female specific include FGM,14 rape,15 repressive social
mores16 and domestic violence.17 For various reasons, refugee law has systematically
denied protection to women who are subjected to these harms.
FGM can take a variety of forms such as: (i) ‘Clitoridotomy’, which involves an incision or removal of
the prepuce of the clitoris; (ii) ‘Clitoridectomy’ which is the excision of the clitoris and usually the
surrounding tissue; (iii) ‘Infibulation’ which is the removal of the clitoris, labia minora and most of the
labia majora. After the organ is scraped off, the practitioner sews up the sides of the vulva leaving a hole
the size of a match stick. These procedures are performed largely in the Middle East, Africa and Asia. The
WHO estimates that between 75 and 85 million women have undergone the procedures. See Mattie L.
Stevens Recognising Gender-Specific Persecution: A Proposal to Add Gender as a Sixth Category 3
Cornell J.L. & Pub. Pol’y 179 at 184
15
Rape has been defined as the unlawful carnal knowledge of a woman by a man, forcibly and against her
will, or without her consent. It is not always simply an act of sexual gratification. Rape can and has been
used as a political weapon. One example of this is the atrocities perpetrated by Serbian Soldiers on Muslim
and Croation women in the early 1990’s. In the midst of a war which began with the Serbian invasion of
Croatia in 1992, the Serbian government set up ‘rape’ concentration camps in which up to 50,000 Muslim
and Croatian females were housed. These women and girls were raped and impregnated by Serbian
soldiers, the aim of which was to ethically cleanse the Croatian race. Victims report that their rapists would
say that they would have Serbian babies for the rest of their lives and that they should raise Serbian
soldiers. Women were kept in these camps after impregnation until such time that they gave birth or an
abortion would not be possible. The Serbian Government used mass rape as a tool of war in order to
commit genocide. This incident is substantiated by interviews with victims conducted by the International
Red Cross and the UNHCR, and is well documented by numerous scholars. For example see Catherine
MacKinnon Rape, Genocide and Women’s Human Rights (1994) 17 Harvard Women’s Law Journal 5;
Danise Aydelott Mass Rape During War: Prosecuting Bosnian Rapists under International Law 7 Emory
Int’l L Rev 585; Rebecca O’Bresnick Reproductive Ability as a Sixth Ground of Persecution under the
Domestic and International Definitions of Refugee (1995) 21 SYRJILC 121; Stevens, above n 15
16
This type of experience is most prevalent in Islamic states where women’s rights are violated in the name
of cultural tradition and social mores. For example, the religious text ‘the Qur’an’, which provides the
religious and cultural base of most Islamic Countries states that “men should be favoured above
women…because men are responsible for women”. As judicially applied, the Qur’an is very harsh to
women. Under Pakistan’s Hudood law, a blind girl who had been raped and subsequently became pregnant
was sentenced to execution by stoning for the crime of illegal sex due to her inability to identify her
attacker. Similarly, a fourteen year old girl charged with adultery was given five lashes with an oil soaked
leather whip for failure to provide the requisite four witnesses to prove that she had been raped. (see Teresa
Peters International Refugee Law the Treatment of Gender Base Persecution: International Initiatives as a
Model and Mandate for National Reform (1996) TRNATLCP 225 at 231). In Afghanistan, under the now
defunct Taliban regime, the law of Sharee’ah based on the text of the Qur’an was revived. Legislation was
passed which banned women from the work force and educational institutions and forbid them to leave
private houses. There were reports that in an orphanage in Kabul, girls have not been allowed to leave the
building since September 1996 while boys go outside every day to play and attend school. (see the Feminist
Majority, Stop Gender Apartheid in Afganistan www.feminist.org.action/1_action.html). Women were
required to wear a black burqua that completely covered their face and body except for the eyes which were
concealed by a dark mesh. Further, if a woman was living in a home, all of the windows had to be painted
black and if a woman was in a car, the car’s windows had to be painted black with the exception of the
front window. Violation of this law elicited severe punishment. In 1996, a woman in Kabul had her thumb
cut off as punishment for wearing nail polish. In December 1996, 225 women were lashed on their back
and legs for violations regarding clothing. In October 1997, a woman walking along a street with her two
children was whipped by Taliban guards with a car aerial because she let her veil slip. For accounts of this
and similar regimes see McCabe, above n 9; Marjon E.Ghasemi Islam, International Human Rights &
Women’s Equality: Afgan Women under Taliban Rule (1999) 8S.Cal.Rev.L & Women’s Stud. 445
14
4 The Basis of Refugee Law
The basis of refugee law is found in the United Nations Convention relating to the Status
of Refugees 1951 (the ‘Convention’)18 together with the Protocol Relating to the Status
of Refugees 1967 (the ‘Protocol’).19 The definition of who is considered to be a “refugee”
is contained in Article 1A(2)20 of the Convention, and therefore is the determinative
element as it dictates who can come under its auspices of protection.
A refugee is a person who:
….owing to a well founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside
the country of his [sic] nationality and is unable or, owing to such a fear, is unwilling
to avail himself [sic] of the protection of that country; or who, not having a nationality
and being outside the country of his former habitual residence is unable or, owing to
such a fear, is unwilling to return to it.21
17
Domestic violence is the most common female specific experience, because women throughout the world
are routinely subjected to it regardless of geographic location or culture. It is estimated that one in four
women are likely to be abused by a partner in her lifetime. (see Sara Glazer, "Violence Against Women,"
CQ Researcher, Congressional Quarterly Inc., Vol. 3, No. 8, Feb. 1993, p.171). Domestic violence is
defined as “behaviours used by one person in a relationship to control another”. Examples of this behaviour
include physical and sexual assault. While men can also be victims of domestic violence, this paper is only
concerned with women who suffer abuse at the hands of a male intimate
18
opened for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150. Currently 123 states – including
Canada, the US and Australia –are parties to the Convention
19
19 U.S.T. 6233, 606 U.N.T.S. 267. The Protocol removed the time and spatial constraints of the original
definition of ‘Refugee’, thus allowing more people to potentially benefit from the protection offered by the
Refugee Convention. The Protocol states: The State Parties to the present Protocol:
Considering that the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 covers
only those people who have become refugees as a result of events occurring before 1 January 1951;
Considering that new refugee situations have arisen since the Convention was adopted and that the
refugees concerned may therefore not fall within the scope of the Convention; and
Considering that it is desirable that equal status should be enjoyed by all refugees covered by the definition
in the Convention irrespective of the dateline 1 January 1951;
Have agreed as follows:
Article 1: General Provision
…..for the purposes of the preset ‘Protocol’, the term refugee shall, except as regards the application of
paragraph 3 of this article, mean any person within the definition of article 1 of the Convention as if the
words “As a result of events occurring before 1 January 1951 and…” and the words “…as a result of such
events”, in article 1A(2) were omitted
20
The definition of a refugee contained in Article 1 of the Convention consists of three parts: The inclusion
(Article 1A), cessation (Article 1C) and exclusion clauses (Articles 1D, 1E and 1F). This paper is only
concerned with the operation of, and law that has developed in relation to, Article 1A because the primary
focus is who is considered to be a refugee
21
Article 1A(2) of the UN definition in the Convention
All elements of the Convention have to be satisfied for an individual to be considered a
refugee.22
These are the requirements that a person must meet in order to satisfy the definition of
‘refugee’ at international law.23 However Australia,24 Canada25 and the US26 have
adopted this definition unaltered into their domestic legislation and therefore an
individual seeking protection in these jurisdictions must satisfy the same criteria.
Because these three countries are signatories to, and have ratified the contents of the
Refugee Convention, they have agreed to offer protection to all those asylum seekers 27
who arrive on their shores and are proven to be refugees according to the definition
herein.28
22
For clarity, the person seeking the protection must satisfy the following salient elements:
They must have
(1) a well founded fear;
(2) of persecution;
(3) which has or will be perpetrated on account of one or more of the five enumerated grounds; and
(4) they must not be able to, or be unwilling to, seek the assistance of their own Government
23
For a person seeking the protection of refugee law, this definition could be considered irrelevant because
there is no international body from which refugee protection can be sought. Rather, an individual seeks the
protection of a specific country, and thus relies on the definition of ‘refugee’ incorporated into that
country’s domestic legislation
24
Under s65(1) of the Migration Act 1958 (Cth), a visa may be granted only if the decision maker is
satisfied that the prescribed criteria for the visa have been satisfied. The criteria for the grant of a protection
(class AZ) visa are set out in s 36 of the Act and in Part 866 of Schedule 2 to the Migration Regulations as
in force immediately before 20 October 1999. Subsection 36 (2) of the Act provides that the criterion for a
protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection
obligations under the Refugee Convention as amended by the Refugee Protocol. "Refugees Convention"
and "Refugees Protocol" are defined to mean the 1951 Convention Relating to the Status of Refugees and
1967 Protocol Relating to the Status of Refugees respectively: s5(1) of the Migration Act 1958
25
The definition of refugee in Canada is found in s96 Immigration and Protection Act (2001)
26
The US is not a party to the Refugee Convention, but they have acceded to the Protocol. Because of this
accession, they have ratified all the salient elements of the Convention just without the spatial and time
constraints (see above n 19). The definition of refugee in the US is found in the Refugee Act of 1980,
Pub.L. No. 96-212, sec 201, 101(a)(42), 94 Stat 102, 102-3 (Codified at 8 U.S.C. s1101(a)(42)1988)
27
The difference between an asylee and a refugee is that an asylee applies for refugee status when in the
country of application, while refugees apply for refugee status when outside the country of application. For
the purposes of this paper, the distinction between the two is irrelevant, because the focus is on who is
granted refugee status
28
Catherine Hunter Khawar and Migration Legislation Amendment Bill (No 6) 2001: Why Narrowing the
Definition of a Refugee Discriminates Against Gender Related Claims (2001) 8(1) AJHR 107 at 108
PART II
5 How ‘gender neutral’ refugee law has developed to be
‘gender biased’: why female specific experiences are
outside its scope
Even though the Convention provides a gender neutral definition of ‘refugee’, 29 refugee
law has evolved to be gender biased against women. Women who have claims based on
female specific experiences have been systematically denied protection.
5.1 The foundation of a gendered law
The post war climate in which the Convention was drafted played a pivotal role in its
construction.30 The wording of the Convention reflects the founding States principal
concern of protecting individuals from the types of harm typically being perpetrated
during that period of history.31 During World War 1 and 2, the most common harm was
the violation of an individual’s civil and political rights 32 at the behest of state entities,33
one example being the violation of a Jewish person’s right to life under the genocide
Even though the Convention does refers to ‘he’ exclusively, the drafters intended the definition to apply
to both men and women: “The Refugee Convention is aimed at indiscriminately protecting those fearing
persecution”. Andrea Binder Gender and the “Membership in a Particular Social Group” Category of the
1951 Refugee Convention (2001) 10 Columbia Journal of Gender and Law 240 at 249
30
The Convention was the result of an initiative of the then newly-created United Nations (the “UN”). The
UN formed both the International Refugee Organisation and an Ad Hoc Committee to prepare a convention
on refugees. This move was galvanized by the lack of a comprehensive system to deal with the large
number of European refugees displaced as a result of the war. The Convention was drafted between 1948
and 1951, in the aftermath of World War 2
31
The Department of Immigration & Multicultural & Indigenous Affairs: Gender-Related Persecution
(Article 1A(2)): An Australian Perspective A paper prepared as a contribution to the UNHCR’ Expert
Roundtable Series 2002 83 at 86
32
McCabe, above n 9 at 423: Civil and political rights are known as first generation rights. Karel Vasak in
1977 first introduced the idea that there are three generations of rights. The first generation are known as
‘civil and political rights’ and they include the right not to be tortured, the right to life, the right to a fair
trial and the right to freedom of thought, conscience and religion. This generation is primarily focused on
legal relationships between the individual and the state. The second generation, economic, social and
cultural rights, includes the right to education, the right to protection of one’s scientific, literary and artistic
work and the right to work. The third generation consists of solidarity or group rights, such as the right to
peace and the right to development
33
Persecution was typically suffered at the hands of the state as it was perpetrated under the totalitarian
regimes of the time. “Persecution at that time was state inspired, state directed and state prosecuted”. 33
(Hathaway, above n 12 at p 8-9) Because of this trend, an element of state complicity was included in the
Convention, namely, in order to fit within the Convention criteria, a person must not be able to seek
protection from their own Government
29
policy of the Nazi Government.34 Thus, the resultant Refugee Convention provides
protection from state directed violations of an individual’s first generation rights.35
5.2 The gendered development of refugee
development within a male paradigm
case
law:
Refugee law has developed with a gender bias against women since the Convention was
drafted, a propensity which has been the subject of much academic debate.36 These
discourses offer an assortment of theoretical reasons as to why the law does not readily
allow for the claims of women, the main arguments of which are briefly addressed below.
In order to demonstrate how refugee law is inherently biased, an analysis is undertaken
below of how each element of the Convention has been judicially interpreted in Australia,
Canada and the US. It will be demonstrated that each component of the Convention has
been interpreted in such a way that women have been methodically excluded from being
defined as refugees. The only case law discussed is that which was decided before the
Guidelines in each jurisdiction were issued. In doing so, the need for gender sensitive
Guidelines will be evident.
5.2.1 Theoretical reasons why refugee law developed with a gender
bias
5.2.1.1 The public / private distinction and its influence on refugee law
One reason for the gendered state of refugee law is that it adheres to the theoretical
public/private distinction by offering protection to public but not private actors.37 This
Infringing an individual’s civil and political rights was considered by the drafters to constitute
persecution, but anything less, such as violations of a person’s social, cultural or economic rights, was not.
This was not because the drafters felt social, cultural and economic rights were unimportant, it is simply
that they were not the types of rights being publicly and endemically violated during the advent of the
Convention and thus they were not of foremost concern
35
see above n 32
36
for example see David L. Neal Women as Social Group: Recognising Sex Based Persecution as Grounds
For Asylum 20 Colum.Hum.Rts.L.Rev. 203; Jacqueline Greatbatch The Gender Difference: Feminist
Critiques of Refugee Discourse (1989) 1(4) Int’L J. Refugee L. 518; Anders B. Johnsson The International
Protection of Women Refugees A summary of Principal Problems and Issues (1989) 1(2) Int’L J. Refugee
L. 221; Karen Engle International Human Rights and Feminism: When Discourses Meet (1992) 13
Michigan Journal of International Law 517; Pamela Goldberg Anyplace but Home: Asylum in the US for
Women Fleeing intimate violence (1993) 26 Cornell Int’l L.J. 565; Nancy Kelly Gender-Related
Persecution: Assessing the Asylum Claims of Women 26 Cornell Int’l L.J. 625
37
Stevens, above n 14 at 188
34
results in the exclusion of women’s claims because women are predominately confined
to, and thus suffer persecution within, the private sphere.
Feminists argue that the world is divided into two spheres: the first is the public sphere
which is “the realm of the workplace, the law, economics and intellectual and cultural
life, where power and authority are exercised. [It] is regarded as the natural province of
men”.38 The second is the private sphere, to which women are relegated. It is comprised
of “the home, the hearth and children”.39 Feminist scholars have used this dichotomy to
explain male dominance in society, since the two spheres have historically been accorded
asymmetrical value: greater significance is attached to the public world than the private
one.40 Refugee law abides by this value subscription as it only offers protection to
individuals participating in the public but not private arena. This protection is manifest in
the requirement that a person must be in some way engaged in a relationship with the
State at the time they are persecuted in order to come within the Convention definition of
refugee.41 To have such a relationship a person must be acting in the public sphere. As
stated, women are confined to the private arena, and thus the type of harm they generally
suffer is discounted as persecution for the purposes of the Convention.42
5.2.1.2 A law based on the male experience
A majority of refugee case law results from the adjudication of male claims because men,
for a variety of reasons, are more mobile than women and are therefore the people who
make it to the ‘refugee-accepting’ countries. 43 This is damaging for female refugees as it
Hilary Charlesworth Feminist Approaches to International Law (1991) 85 Am.J.Int’l L. 613 at 626
ibid
40
ibid
41
Hathaway, above n 12 at Chapter 5
42
The Legal Aid Commission of NSW notes that refugee law generally does not extend to protect the
individual who suffers “private” persecution:
In representing refugee clients we find that when a woman claims that she has been raped or otherwise
sexually violated, it cannot be taken for granted that this will be accepted by the Department as a form of
persecution and/or inhuman and degrading treatment… Even where it is accepted by the DORS Officer
that a woman has been raped by a member of the military or other government official, she then has to
demonstrate that the person who raped her was not acting in his private capacity rather than his official
capacity before it is considered relevant to her claim for refugee status….. Thus as seen in other areas of
legal practice, women's experience of persecution is characterised as 'private' and therefore not in the
'public' realm addressed by the Convention (see Legal Aid Commission of NSW, Submission 588)
43
Males often have passports, more money, lack of familial obligations and external contacts which more
readily allow them the opportunity of flight. Ed Broadbent highlights the situation of women when he
38
39
means the law they are trying to claim under is not sensitive to their specific plight
because it has had no experience in dealing with it: “The existing bank of
jurisprudence… is based on, for the most part, the experiences of male claimants…the
definition [of refugee] has not been widely applied to female specific experiences such as
infanticide, genital mutilation, bride burning, forced marriage, domestic violence, forced
abortion or compulsory steralisation”.44 Nancy Kelly notes the negative upshot of this
male orientated state of the law: “because advocates have learned to present cases within
a largely male-orientated body of law, women’s cases are often formulated in ways that
reflect the advocates understanding of the law, rather than the reality of the applicant’s
experience”.45 This means that women often have to contort or manipulate their claims to
fit them within the parameters of the current law.
5.2.2 The gendered judicial interpretation of the elements of the
Refugee Convention
5.2.2.1 Persecution
To be considered a refugee an individual must demonstrate that they have a well founded
fear of persecution. Because not all human rights violations are considered persecutory as
the Convention was not intended to be a ‘blank cheque’ that offers protection to
everyone,46 the central question is, what exactly has been deemed to constitute
persecution?
The persecution element contains two aspects: The first is whether the harm apprehended
by the individual amounts to persecution. The second is whether the State can be held
accountable, in some measure, for the infliction of the harm.47 Both limbs must be
satisfied for the harm to be labeled as persecution.
comments “the women we’re talking about can’t jump in the car and go to the airport to buy a ticket; they
aren’t permitted to drive. And they don’t exactly have an American Express gold card that they could use to
buy tickets to fly here”. Quoted by Jane Connors in Legal Aspects of Women as a Particular Social Group
(1997) Int’L J. Refugee L. 114 at 115
44
Kristine M. Fox Gender Persecution: Canadian Guidelines Offer a Model for Refugee Determination in
the US 11 Ariz.J.Int’l & Comp.L. 1994 117 at 123
45
Kelly, above n 36 at 629
46
Department of Immigration & Multicultural & Indigenous Affairs, above n 31 at 4
47
Macklin, above n 7 at 222
5.2.2.1.1 The judicial characterisation of the harm women suffer as ‘not serious
enough’ to constitute persecution
There is no universally accepted legal definition of persecution.48 It is not defined in the
Refugee Convention and is left vague in the UNHCR Handbook and Procedures and
Criteria for Determining Refugee Status49 which unhelpfully states:
A threat to life, freedom on account of race, religion, nationality, political opinion
or membership of a particular social group is always persecution. Other violations
of human rights – for the same reasons – would also constitute persecution.50
Since there is scant international guidance on how to interpret this element of the
Convention and the term is not defined in any domestic law, decision makers have been
largely left to their own devices in assessing whether or not the harm feared by the
applicant amounts to persecution. Unfortunately, the harms typically suffered by women
have generally been considered not serious enough to constitute persecution.51
The incidence of rape and domestic violence is characterised by decision makers as a
personal manifestation of lust which occurs in the private sphere, and as such is outside
the scope of the Convention.
In Klawitter v INS52 the applicant claimed she was
subjected to years of sexual and emotional abuse at the hands of an officer of the Polish
secret police.53 The 6th Circuit54 upheld the BIA’s denial of asylum finding that while “he
Jennifer Burn & Anne Reich The Immigration Kit: A Practical guide to Australia’s Immigration Law (6th
ed) Sydney, 2001, at p 330
49
Office of the United Nations Commissioner for Refugees Handbook on Procedures and Criteria for
Determining Refugee Status (Geneva, Sept 1979 re-edited Jan 1992). The Handbook is meant to provide a
guide to interpretation and it is not binding on signatories to the Convention
50
ibid at para 51. The definition of persecution in the UNHCR Handbook was left intentionally vague
because the UNHCR wanted to encourage a case by case analysis of whether the harm experienced or
feared constitutes persecution fully taking into account the subjective fear of an applicant. ibid .at para.52.
51
Audrey Macklin Cross-Border Shopping for Ideas: A Critical Review of US, Canadian and Australian
Approaches to Gender – Related Asylum Claims (1998) 13 Geo.Immigr.L.J 25 at 33
52
970 F.2d 149 (6th Circuit.1992)
53
The claimant, 45 year old Elizbieta Klawitter, petitioned for political asylum after the INS instituted
deportation proceedings against her in 1990. Klawitter alleged she had been the victim of repeated
persecution at the hands of Josef Niedzwiecki, a colonel in the Polish Secret Police. This persecution
started in 1986 when she was questioned, during which time and in the course of several subsequent
interrogations, Klawitter claimed that the Secret Police physically abused her. More over she claimed she
was blacklisted for her refusal to join the Communist party and as a result, her career as a musician was
damaged. Klawitter also alleged that she had been sexually propositioned by Colonel Niedzwiecki, who
had decided to make her his mistress. Apparently the Colonel forced himself upon her and threatened to
48
[the officer] may have threatened and harmed [the claimant] on occasion….it is clear that
he was not persecuting her….such harm or threats arising from a personal dispute of this
nature…are not grounds for asylum”.55 The Court explicitly agreed with the BIA’s
contention that “harms or threats of harm based solely on sexual attraction do not
constitute ‘persecution’ under the Act”.56
Refugee claims based on harm feared as a result of flouting social mores are frequently
dismissed by the decision makers via cultural relativist reasoning. Nada’s Case57
involved the asylum claim of a Saudi Arabian woman who fled her homeland because of
the severe restrictions that the local culture placed on the exercise of her freedoms. 58 The
Canadian Refugee Board59 held that Nada, “like all Saudi Arabian women, would have to
obey the laws that she denounced”.60 The two male panelists told her to go home, observe
her country’s laws and “show considerations for the feelings of her father”.61 In doing so,
destroy her career if she did not consent to the arrangement. The harassment extended beyond the
interrogation rooms of the Secret police headquarters to her private residence, where the Colonel and his
friends attempted to gain entry when intoxicated
54
The structure of the refugee decision making bodies in the US is as follows: The first level asylum
adjudication is performed by officers of the Immigration and Naturalisation Service (the “INS”) , unless the
asylum applicant has been arrested by the INS, in which case his or her immigration status (including
possible asylum claim) is determined in the first instance by an Immigration Judge. Applicants who are not
granted asylum by an asylum officer will be placed in removal proceedings and their claim will be
adjudicated by an Immigration Judge. Applicants at this stage receive a de novo hearing with significant
procedural protection including the right to be represented by counsel, to present evidence and crossexamine witnesses. Unsuccessful applicants before an Immigration Judge can appeal to the Board of
Immigration (the “BIA”), and thereafter, have the right to review in the Federal Courts. See Macklin, above
n 51 at 27
55
see above, n 52 at 152
56
ibid
57
Convention Refugee Determination Decisions (CRDD) No 1096, No M91-04822
58
Nada told the Immigration Panel that when walking down the streets of her home town without a veil,
she was jeered at and had rocks thrown at her. She could not study at the best universities, and some
occupations were closed to her. She could not drive or travel without the permission of a male relative. For
Nada, these cultural practices severely curtailed the exercise of her freedom as Nada had decided that she
wanted to go to school and become a physical education teacher
59
The structure of Canadian refugee decision making bodies is as follows: The Canadian Immigration and
Refugee Board (the “IRB”) operates as a full administrative tribunal to which an individual makes the
initial submission requesting refugee status. The individual claims are typically heard by a two member
Panel of the Convention Refugee Determination Division (the “CRDD”) of the IRB. If the claim is
unsuccessful, an individual can apply for judicial review to the Federal Court of Canada (Trial Division).
From there, a claim can proceed through the normal judicial appeal process. Macklin, above n 51 at 29
60
see above n 57 at p5-6
61
see above n 57 at p7. The attitude of the panelists is discussed by Mary Williams Walsh in Battered
women as Refugees L.A. Times Feb.23 1993 at A12
the Board suggested the harm Nada suffered was justifiable on the grounds of culture,
and thus not persecutory.62
5.2.2.1.2 State Accountability
A well founded fear of a female specific harm will only attract the label “persecution”
upon the attribution of state responsibility to the conduct.63 However, such ascription is
difficult for women, given that most female specific harms take place in the private
sphere at the hands of non-state actors such as boyfriends, husbands and relatives.64 As
Shirely Wright observes, “for most women, indirect subjection to the state will almost
always be mediated through direct subjection to individual men or groups of men”.65 The
often insurmountable task for the female claimant, while not having to prove that the
state is actively complicit, is to show that the persecutor is someone who the Government
is unable or unwilling to control.66
In Matter of Pierre (1975),67 the BIA ruled that spousal abuse by a Haitian legislator did
not constitute persecution because the claimant could not prove that the state would not
come to her aid.68 This was found regardless of the Haitian government’s evident
systematic failure in protecting her from the feared harm, given that the abuse had been
Nada was subsequently granted dispensation on “humanitarian and compassionate grounds” to remain in
Canada due to the public outcry that ensued when she was initially denied asylum. However, as Nada was
not classified as a refugee, her case set no precedent for other women. Stevens, above n 14 at 185
63
The requirement that a claimant must not be able to seek refuge from their own Government demands a
level of state complicity. As Justice La Forest stated in Canada (Attorney-General) v Ward (1993) 2 SCR
689 at 709:”International refugee law was formulated to serve as a back up to the protection owed a
national by his or her state. It was meant to come into play only in situations where that protection is
unavailable, and then only in certain situations. The international community intended that persecuted
individuals be required to approach their home state for protection before the responsibility of other states
becomes engaged”
64
Macklin, above n 51 at 33
65
quoted in ibid
66
Discriminatory laws and rape by military or police involve direct participation by, or on behalf of, the
state. In such acts, the state is directly complicit. Conversely, domestic violence, female genital mutilation
and the like are committed by non-state agents under the umbrella of state indifference. In the latter
situation, the subscription of responsibility to the state is difficult and the challenge for the female claimant
is to convince the refugee determining body that the Government from which she fled cannot or will not
control the perpetrator of the harm. See McCabe, above n 9 at 428
67
15 I&N Dec. 461 (BIA 1975)
68
In 1971 Pierre fled to the US to escape her abusive husband in Haiti. Her husband, a deputy in the
Haitian government, had frequently threatened to kill her. On one occasion he tried to carry out this threat
by having the house in which she was residing burnt to the ground. Living in fear of her husband, Pierre
was forced to go into hiding in Haiti. Finally, convinced that her husband’s high position in the Haitian
government would prevent the civil authorities from protecting her, she sought asylum in the US
62
going on for several years.69 As a result, the claimant was not offered protection either in
her own country or under refugee law.
Asylum was denied to a Jordanian woman who was forced by her relatives to marry her
brother in law who then abused her. While the Court considered the harm she suffered
serious enough to constitute persecution, it found that the claimant had not established
that the authorities were unwilling or unable to grant protection because she did not
report “the rude treatment by her in-laws” to the Jordanian police.70 However, the Court
went on to acknowledge that “from the perspectives of culture it is unusual to turn to the
authorities for family problems”.71 Thus, in the same breath the Court denied the claimant
asylum because she did not inform her own Government of her plight, while
simultaneously acknowledging the impossibility of her doing so.
5.2.2.2 “Well founded fear”
The refugee definition demands that the claimant’s fear of persecution be well-founded.
This requirement has been interpreted differently in various jurisdictions.72 In the US, the
claimant must show that there is a “reasonable probability” she will suffer persecution if
returned to her country of origin,73 while in Australia, the High Court has held the
claimant must show a “real chance” of persecution. However, if the claimant
demonstrates past persecution, the burden shifts to the immigration officer to establish a
substantial and material change in circumstances in the country of origin.74 In Canada,
69
It is noted that it is not the role of refugee law to protect individuals from common crimes: it only
protects them from persecution. However, when domestic violence is endemic in a relationship and the
state consistently fails to protect the suffering individual, as evidenced by the fact that the domestic
violence is still going on, many academics argue that the harm is persecutory. See Goldberg, above n 36;
Anjana Bahl, Home is Where the Brute Lives: Asylum Law and Gender-Based Claims of Persecution
(1997) 4 Cardozo Women’s L.J. 33
70
Spijkerboer, above n 2 at p 110
71
ibid
72
Hathaway states that ‘a well founded fear of persecution exists when one reasonably anticipates that
remaining in the country will result in a form of serious harm which the government cannot or will not
prevent, including either specific hostile acts or an accumulation of adverse circumstances such as
discrimination existing in an atmosphere of insecurity and fear”. Hathaway, above n 12 at p 102
73
INS v Stevic 467 U.S. 407 (1984)
74
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. A ‘real chance’
was interpreted by the Full Federal Court of Australia in MIEA v Che Guang Xiang (unreported, Full
Federal Court, 12 August 1994) as the reasonable possibility of the occurrence of persecution but not a
remote possibility, however the court stops short of requiring the claimant to show that persecution is
probable
the Courts require that there be a “reasonable chance” or “real risk”75 of persecution if the
claimant is refouled.76
In all jurisdictions, the well founded fear element consists of both a subjective and an
objective limb. To exhibit a well founded fear, an individual must subjectively fear
persecution and that fear must be “grounded in objective reality”.77
5.2.2.2.1 Subjective limb
A female claimant must convince the decision maker that she personally believes she will
suffer persecution if refouled. Evidence is often solely provided by a claimant’s own oral
testimony. Whether or not the decision maker is convinced depends on if they find the
testimony credible.78
Because discussion of sexual matters, which make up the bulk of female-specific
experiences, are considered taboo in most cultures, and because women often react to
sexual violence with feelings of guilt, isolation and fear, female asylum seekers
commonly have difficultly describing and effectively communicating their experiences.79
Adjudicators may deny claims because women fail to express the nature and severity of
the persecution they have suffered.80 Chisholm observes that “the success of an asylum
claim depends on the applicant’s ability to narrate authoritatively. Asylum claims centre
on the party’s ability to articulate events and cultural norms of ‘foreign’ societies in a
way that is heard – and believed – by the other participants, immigration officers and
75
Adjei v Canada (1989) F.C.680
To ‘refoul’ someone is to return them to their country of origin
77
Cardoza-Fonseca v INS 767 F.2d 1448, 1452 (9th Cir.1985); Chan Lee Kin v The Minister for
Immigration and Ethnic Affairs (1989) 169 CLR 379 see Mason CJ at 389, 398, 407, 429 and Dawson J at
296
78
A majority of women’s cases in the Refugee Review Tribunal in Australia turn on the issue of credibility.
About 80% of the cases heard between 1 January 1999 and 30 June 2002 were rejected because of doubts
about the credibility of the applicants (see www.unhcr.ch)
79
Emily Love Equality in Political Asylum Law: For a Legislative Recognition of Gender-Based
Persecution (1994) 17 Harvard Women’s Law Journal 133 at 138
80
Caryn L.Weisblat Gender- Based Persecution: Does US Law Provide Women Refugees with a Fair
Chance?7 Tul.J.Int’l&Comp.L.407 at 414. Weisblat suggests that the experiencing rape, domestic violence
or FGM can cause a woman refugee to lose memory of event. Her subconscious may not let her remember
the horrible and violent acts she has suffered. This could give the impression that the claimant is lying, and
thus compromise the credibility of her claim in the eyes of the adjudicator
76
judges”.81 The difficulty of such a task is heightened considering a lot of refugees would
not speak English, the native tongue in the three jurisdictions being considered.82
Another fundamental stumbling block women encounter in attempting to assert the
credibility of their claim is that most adjudicators are men.83 A woman’s recount of
persecution may not ring true simply because of men’s unfamiliarity with female specific
experiences.84 This is evident in the transcript of an interview with a Zairian woman
seeking asylum. She was arrested for distributing political pamphlets, was detained for
four days and raped by five soldiers. In the passage of the interview where she described
the rape, the male interviewer noted: “the applicant showed no sign of any emotion”
when he clearly expected her to. He could not understand how someone who had been
raped could be emotionally detached from the experience. He considered her story was
incredible.85 Recently, there has been a lot of research done into the occurrence of rape
trauma syndrome which renders a victim emotionally detached from the event as a mode
of self protection.86 The official was obviously unaware of the way in which the
emotional aftermath occasioned by rape manifests itself.
5.2.2.2.2 Objective limb
The burden is on the applicant to establish that a reasonable person in her circumstances
would fear persecution if returned to her country of origin. In order to determine if this
onus has been discharged, a decision maker assesses independent documentation which
provides evidence of the objective conditions in the country of the claimant’s origin. This
documentation is gathered from the Government in question or from research undertaken
by Non Government Organisations. However, there is often a dearth of information due
B.J Chisholm Credible Definitions: A Critique of U.S. Asylum Law’s Treatment of Gender-Related
Claims (2001) 44 How.L.J. 427 at 439
82
The difficulty women encounter in aptly conveying their experiences to decision makers is highlighted in
one case reported by Deborah Sontag. During three hours of halting testimony about being repeatedly
gang-raped by guerillas in El Salvador, the female applicant kept her face covered with her hands while the
immigration judge clipped his fingernails. See Deborah Sontag Women Asking U.S. Asylum Expand
Definition of Abuse N.Y. Times Sept 9, 1993 at A13
83
A February 1994 field listing prepared by the EOIR reported that approximately 20 of the 96
immigration judges in the US were women.
84
Love, above n 79 at 138
85
Spijkerboer, above n 2 at p 59
86
see for example, Nancy Raine After Silence: Rape and My Journey Back New York 1998
81
to the fact that incidences of many female specific experiences are not well documented.
For example, if a Government does not see domestic violence as an issue in its own
country but rather accepts it as a cultural norm, it will not bother to document its
prevalence. 87 Thus, there will be no evidence for a claimant to adduce in support of her
claim seeking asylum from this kind of harm.88
5.2.2.3 “On account of”
The Convention demands that a claimant suffer persecution “on account of” one or more
of the five enumerated categories in order to come within its parameters. That is, a
claimant must demonstrate that she was persecuted because of her race, religion,
nationality, membership of a particular social group or political opinion.
The female specific experiences discussed in this paper are often perpetrated against
women for the simple reason that they are women.89 However, as there is no category of
gender, women have to couch their claims in such a way that they ‘fit’ into the existing
legal structure. The legalistic contortions to which both claimants and decision makers
have gone to accommodate claims within the narrow parameters of the Convention are
immense and often verge on the ridiculous. Added to this, there is inconsistent
interpretation of the “on account of” element both between and within jurisdictions,
resulting in confused law lacking in logical precedent.
The categories of “political opinion” and “membership of a particular social group” are
most commonly used by women basing a claim on a female specific experience.
5.2.2.3.1 Persecution on account of her “political opinion”
 The interpretation of politically motivated sexual abuse as random acts of
violence
87
Schneck suggests that documentary evidence will certainly not exist if the Government has participated
in the persecution or attempted to cover it up. See Todd Stewart Schneck A Proposal to Improve the
Treatment of Women in Asylum Law: Adding a “Gender” Category to the International Definition of
“Refugee” 2 Ind. J. Global Legal Stud. 301 at 309
88
ibid
89
Suzanne Sidun An End to the Violence: Justifying Gender as a “Particular Social Group” (2000) 28
Pepp. L. Rev. 103 at 117
One of the most common arguments submitted by women is that they are sexually abused
on account of their political opinion. However, this argument is often not credited by
decision makers as they fail to recognise that persecution for a woman’s political opinion
can take the form of rape or sexual abuse. Instead the assaults are mis-characterised as
private acts motivated by lust.90
In Campos – Guardado v Immigration and Naturalisation Service,91 the Judiciary’s
reluctance to deem the abuse in question politically motivated is palpable. In this case the
claimant watched her males relatives hacked to death with machetes by three El
Salvadorian guerilla soldiers as punishment for her Uncle’s political activities. Directly
following this she, and the other female members of her family, were gang raped by two
of the same soldiers while a female guerilla shouted political slogans.92 After the attack,
the claimant was released, but threats to her life were subsequently made on numerous
occasions.93 Fearing further harm, the claimant fled to the US seeking asylum. The Fifth
Circuit affirmed the BIA’s deportation order94 and rejected Campos-Guardado’s claim
that she had suffered persecution on account of her political opinion.95 The Court held the
attack was a “personally motivated expression of a sexual desire”96 and did not have any
According to Robert Jobe, a San Francisco immigration lawyer, “unless a rapist said to the woman, ‘I’m
raping you because you spoke out against the Government’ it is unlikely a judge will find she has been
persecuted on account of her political opinion”. Quoted by Kristin Kandt in United States Asylum Law:
Recognising Persecution based on Gender using Canada as a Comparison (1995) 9GEO.Immir.L.J 137 at
148
91
809 F.2d 285 (5th Cir. 1987)
92
The home of the claimant’s Uncle, who was politically active in a local agricultural co-operative, was
raided by guerilla soldiers while she was living there. The guerilla soldiers forcibly removed CamposGuardado, her uncle, three female cousins and one male cousin from the home and took the family to the
rim of the farm’s water hole where they bound all the victims. The band proceeded to hack the flesh from
the bodies of the male captives with machetes while the women were forced to watch. After shooting the
men, the soldiers turned on the women
93
After the attack, while visiting her mother, she was introduced to a cousin, and she was told that he had
recently escaped from guerrillas. The cousin was her rapist. After this meeting, he followed the applicant,
stole her money and threatened to kill her and her family if she revealed he had raped her
94
The BIA upheld the decision o the Immigration Judge, finding that Ms Capos-Guarado failed to establish
the rape was motivated by a desire to harm her because of a political opinion and that the subsequent
threats made to her by her rapist were personal rather than political
95
While the board concluded that the attack on her family resulted from her uncle’s political views, it was
found that Ms Campos – Guardado had not shown that she had been harmed because of her political
opinion. See above n 91 at 288
96
ibid
90
political flavour. The claimant was not considered a refugee because the nexus
requirement was not fulfilled.97
In 1993, the BIA denied asylum to a woman who had been gang raped by military men
during the illegal regime which took control following the September 1991 coup in Haiti.
The attack left her permanently unable to bear children. She was raped in direct
retaliation for her political activities in support of the democratically elected president
and his Government. However, the attack was perceived as a random act of sexual
pleasure as opposed to a political weapon.98
In another instance, an Immigration Judge characterised the rape a claimant suffered at
the hands of soldiers directly after they accused her of being a guerilla, “as an act of
random violence committed against a convenient female by a soldier seeking to fulfill his
own self interest”.99
 Imputed Political Opinion
The US in Lazo-Majano v INS100 toyed with the concept of imputing a political opinion
to a claimant in order to overcome the consistent categorisation of sexual harms as
private acts. In imputing an opinion the Court held that it is not necessary that the
claimant actively demonstrate, or even be aware, that she holds this opinion. Instead the
Concerning the claimant’s fear of her assailant should she return to El Salvador, the BIA held that these
threats of reprisal were personally motivated - to prevent her from exposing his identity – and that there
was “no indication that he maintained an interest in her because of her political opinion or any other
grounds specified in the act”. ibid
98
In re D-A Interim Decision No 3252 (BIA 1993). See Anker, above n 6 at 772
99
Documented by Amnesty International in Women in the Front Line: Human Rights Violations Against
Women 5 (1990) at 49
100
813 F.2d 1432 (9th Cir 1987). Lazo – Majano, a domestic worker, was repeatedly sexually assaulted by
her employer, Rene Zuniga, a low – ranking member of the Fuerza Armada, the Salvadorian military. On
the first occasion, he sexually assaulted her at gun point. On other occasions, he held hand grenades to her
forehead, threatening to explode them if she resisted his advances. He also threatened to torture her
physically and kill her and her children if she ever told anyone about his actions. He told her numerous
times that he could do whatever he wanted with impunity since “no one would get involved with a member
of the armed forces. Lazo-Majano believed that she could not escape Zuniga’s torture while in El Salvador,
as the power of the armed forces was so great that they would probably support his actions and allow him
to carry out his threat of killing her unpunished. She fled to the US where she applied for political asylum.
The BIA denied her asylum holding that “the respondent’s terrible mistreatment at the hands of this
individual does not constitute persecution within the meaning of the Act” (at 1434). However, on appeal
the 9th circuit granted her asylum on the basis of the “cynical imputation of a political opinion to her” (at
1435). see Jacqueline Castel Rape, Sexual Assault and the Meaning of Persecution (1992) 4(1) Int’L J.
Refugee L. 39 at 42 for a detailed discussion of decision in this case
97
focus is on the persecutor’s motives. Thus, in the face of it, this reasoning could be
potentially beneficial for claims based on female specific experiences.
In applying this concept to domestic violence victims, the imputed political opinion is
usually a belief that a woman has a right not to be subjected to male domination. Her
persecutor holds the political opinion that men are dominant, which is demonstrated by
the violence he inflicts on the claimant. The Court imputes to the claimant the opinion
that she opposes the political opinion of her abuser because she flees the violence.
Therefore, the reasoning is that the claimant was persecuted on account of the opinion
she holds that she should not be subjected to the domination of men.
While this is a way to bring gender based claims under the head of political opinion, the
logic in such an approach is wanting as pointed out by Macklin: “This kind of reasoning
means that anytime a woman defends herself there is a presumption that the man has
attacked her because she is defending herself”.101 The circularity is evident and the
concept of “imputing political opinion” aptly demonstrates the ridiculous lengths to
which the judiciary must go in order to afford women any protection under refugee
law.102
What is more, this case was followed directly by the decision in Campos- Guardado,103
and while they both had similar fact scenarios, the latter employed different judicial
reasoning, dismissing the concept of imputed a political opinion outright resulting in a
denial of asylum to the claimant.
Macklin uses the following analogy to further demonstrate her point: “Consider that it would be odd to
argue that South African whites opposed blacks because blacks held the opinion that they were entitled to
be treated as human beings. Indeed, Apartheid existed because of the racist beliefs of whites – in other
words, blacks were persecuted because of their racialised identity, not because of what they believed”.
(Macklin, above n 51 at 59). This analogy demonstrates that the concept of ‘imputed political opinion’ does
not allow for the reality of the situation of women to be portrayed, which is namely, that women are
subjected to domestic violence predominately because they are women
102
In his dissenting judgment, Justice Poole argued that the majority’s holding on imputed political opinion
was “a construct of pure fiction”. The Court, he said, had “outdone Lewis Carroll” in its application of the
term ‘political opinion’. Lewis Carroll was the author of Alice in Wonderland. ibid, n100 at 1437
103
see above n 91
101
Divergent reasoning from within the same jurisdiction, resulting in opposite outcomes
demonstrates that there is little worthwhile precedent to be derived from the adjudication
of gender specific claims. Case law has not developed any coherent precedent which can
be used as a tool by female claimants, but instead it remains an ad hoc collection of
decisions.
5.2.2.3.2 Persecution on account of her “membership of a particular social
group”
The social group category has become the enumerated head of choice for a majority of
gender-based claims,104 because it is the most likely to be accommodating. However, as
there is no definition of the term ‘particular social group’ in the Convention105 or any
domestic law, exactly how a group is constituted has been determined by case law. What
has resulted is a disparate set of decisions that provide little clarity concerning claimant
eligibility under this enumerated category.
Canada has adopted a much more liberal interpretation of what constitutes a social group
than the US and Australia. Decision makers appear amenable to constructing social
groups which allow claims based on gender specific experiences to be granted because
they have found that an applicant’s gender is in some way determinative of a social
group. In Cheung v Canada106 the successful claimant made out a social group of
‘Chinese women who had more than one child and faced forced steralisation’, while in
Mayers and Marcel v MEI107, the Federal Court of Appeal discerned a social group
comprised of ‘Trinidadian women subject to wife abuse’. The Canadian Immigration and
Refugee Board has determined that ‘single women living in a moslem country without
104
Weisblat, above n 80 at 416
The category of “membership of a particular social group” was suggested by the Swedish representative
at the Refugee Convention debates because “experience had shown that certain refugees had been
persecuted because they belonged to a particular social group”. This ‘after thought’ nature of the inclusion
of this category had led many commentators to believe that its purpose is to act as a catch- all. (eg: see ibid)
That is, anyone who cannot fit their claim under one of the other four heads can bring it under this fifth
‘general’ head. The counter academic argument is that if the category was used as such, no claim for
refugee status would be denied. The catch all would live up to its namesake, and catch every claim not
covered by the other heads. Academics argue this is an incorrect interpretation of the Refugee Convention,
as it was not intended to provide relief for every victim of human rights violations. (eg: see Macklin, above
n7 at 218) These divergent academic perspectives highlight the unsettled nature of the ‘particular social
group’ category
106
(1993) 2 FC 314
107
(1992) 97 D.L.R. (4th) 729 (F.C.A.D.)
105
the protection of a male relative’,108 ‘unprotected Zimbabwean girls or women subject to
wife abuse and ‘Zimbabwean girls or women forced to marry according to customary
laws of Kusvavura and Lobolo’109 belong to a social group.110
The landmark case of Canada v Ward111 sets out Canada’s current law of how to
construct a particular social group, holding that such a group may be defined by:
1) an innate or unchangeable characteristic;
2) a voluntary association or reasons so fundamental to human dignity that members
should not be forced to forsake the association; or
3) past membership in a voluntary association unalterable due to its historical
permanence.112
The Court listed gender as an example of an innate or unchangeable characteristic.
The law in Australia and the US does not leave as much scope for gender-based claims.
Two divergent, but mutually exclusive tests to determine the existence of a particular
social group have emerged from these jurisdictions, neither of which is entirely amenable
to fairly assessing claims based on gender specific experiences.
The first is the immutable characteristic test set out by the BIA in Matter of Acosta.113
The Board held that persons who are members of a group must share a common
immutable characteristic in order for that group to be considered ‘a particular social
group’. The Full Federal Court of Australia cited this case with approval in Morato v
Minister for Immigration, Local Government and Ethnic Affairs114 in which it was held
that “the phrase 'social group' denotes 'a recognisable or cognisable group within a
society that shares some …experience in common”.115
108
In Re Incirciyan No M87-151X and M8701248 (10 August 1987). See also CRDD U91-04008 (24 Dec
1991) where a Somalia claimant was held to be a member of the particular social group ‘young women
without male protection’
109
CRDD U92-06668 (19 Feb 1993)
110
Connors, above n 43 at 125
111
(1993) SCR 689
112
ibid at 739
113
19 I.& N. Dec 221 (BIA 1985)
114
(1992) 39 FCR 401
115
ibid at 432
A fear of a potential inundation of refugee claims limits a bold application of the
immutable characteristic test. As a result, social groups are never defined too broadly. 116
In Gomez v INS (1991),117 the 2nd Circuit held that “broadly based characteristics such as
youth and gender will not endow individuals with membership in a particular group”.118
The Federal Court of Australia in Lek Kim Sroun v Minister for Immigration, Local
Government and Ethnic Affairs119 felt that 'young single women' and ‘women whose
husbands had anti-governmental affiliations’ was too broad a category to constitute a
social group.120 In Safie v Immigration and Naturalisation Service121 the 8th Circuit held
that a social group comprised of Iranian women who share the innate characteristics of
sex and discrimination based on social mores was too broad.
Thus, in an effort not to present too broad a group claimants have taken to defining their
social group exceedingly narrowly. For example, groups comprised of ‘women who have
been previously battered and raped by Salvadoran guerillas’,
122
and ‘those who having
only one child do not accept the limitations placed on them or who are coerced or forced
into being sterilized’123 have been found to exist. When a social group is so narrowly
defined, the precedent value of a decision is lessened because it is unlikely that a similar
fact scenario will arise. This same criticism can be levelled at Canada as it can be seen
above that the social groups constructed in this jurisdiction are very narrow and are
therefore, as Maryellen Fullerton indicates, “incapable of providing an analytical
The ‘floodgates’ argument is one often put forward in opposition to constructing social groups too
broadly. Thus, ‘women’ or ‘gender’ are not deemed particular social groups as it is feared that if such a
social group was found to exist there would be an influx of female refugees. See Daniel McLaughlin
Recognising Gender-Based Persecution as Grounds for Asylum (1994) 13 Wis.Int’l L.J 217 at 229; Valerie
Oosterveld The Canadian Guideline on Gender-Related Persecution: An Evaluation (1996) 8(4) Int’L J.
Refugee L. 596 at 595; McCabe, above n 9 at 428
117
947 F2d.660 (2nd cir 1991)
118
ibid at 664
119
(1993) 117 ALR 455
120
This was stated by Wilcox J in obiter. He also said that there was “no common or binding element
among people within the groups [mentioned] nor was there sharing of common social characteristics that
might attract persecution” ibid at 432
121
25 F.3d 636 (8th Cir.1994)
122
Gomez v INS 947 F2d.660 (2nd cir 1991) at 663-4
123
RRT Reference: N94/3000 (20 May 1994) at 12
116
framework as they do not establish a clear approach”.124 The groups are too dependent on
their specific fact situation to be of general application and thus the definition of what
constitutes a particular social group turns on the whim of a single decision maker.125
The second test is only followed in the US and was set out by the 9th Circuit in SanchezTrujilio v INS.126 In complete contradiction to precedent in its own jurisdiction the Court
adopted a ‘voluntary association test’ when determining membership of a particular
social group. It held that a social group must comprise of a “collection of people closely
affiliated with each other, who are actuated by some common impulse or interest”. Thus,
the voluntary association test provides protection from persecution resulting from a
choice made by the individual, but it does not provide protection from persecution
resulting from a characteristic over which the individual has no control.127 Long argues
that this test merely places the social group category within the confines of ‘political
opinion’.128
The voluntary association test is virtually impossible for gender based claims to satisfy. A
majority of female specific harm is suffered simply because the victim is a woman, a
characteristic innate to her which is not derived from a conscious affiliation with a group
of people. As such, premising a social group, at least in part, on the immutable
characteristic of gender is the only formulation which will allow for gender specific
claims.
A common approach in both Australia and Canada has been to define a social group by
the persecution feared. However, such reasoning is inherently flawed because it is
124
Maryellen Fullerton A Comparative Look at Refugee Status Based on Persecution due to Membership in
a Particular Social Group (1993) 26 Cornell I.L.J 509 at 540
125
Connors, above n 43 at 126
126
801.F2d. 1571 (9th Circuit 1987)
127
As an example, the Court stated that immediate family members would satisfy the test, but that a group
of six – foot males would not (ibid at 1576). However, note that Estrada-Posadas v INS 924 F.2d 916, 919
(9th Cir 1991) held that a family unit does not constitute voluntary association and thus does not meet the
definition of particular social group. Also see Neal, above n 36 at 211
128
Walter Long Escape from Wonderland: Implementing Canada’s Rational Procedures to Evaluate
Women’s Gender-Related Asylum Claims (1994) UCLAWLJ 179 at 190
circular. For example, in Mayers Marcel v M.E.I129 where the social group was defined as
‘Trinidad women subject to domestic abuse’, the applicant effectively argued she was
persecuted due to her membership in a persecuted social group.130 Lesley Hunt points out
that it is circular to argue that someone is persecuted for the reason that she is
persecuted:131 “One may as well dispense with the requirement that persecution be linked
to a reason, if the reason is that one belongs to a group defined as persecuted people”.132
By comparison, the trend in the US has been to define social groups distinct from the
persecution feared. The law in this jurisdiction is that “the definitive characteristics of a
particular social group are those which mark the group for persecution and not the actual
persecution itself” .133 This is a much clearer approach.
129
A- 544-92 (2 Nov 1992)
Schneck, above n 87
131
RRT Decision N93/00656 (3 August 1994), 10
132
Macklin, above n 51 at 62
133
Kelly, above n 36 at 658. see also Gomez v INS 947 F.2d 660 (2nd Cir.1991)
130
It can be seen form the above discussion that the way decision makers have interpreted
all elements of the Refugee Convention has lead to a law which is not sensitive to the
plight of women. It cannot deal with the uniqueness of their claims, and any effort to do
so has resulted in a contortion and manipulation of the law. The discrimination inherent
in refugee law is aptly demonstrated when considering:
“Beating a man was obviously a form of persecution; raping a woman was not.134
Ethnically motivated attacks in the face of state indifference constituted
persecution; systematic domestic abuse of women in the face of state indifference
did not.135 Torture of political dissidents in the name of social control was not
protected as a legitimate cultural practice; excising a girl’s genitalia in the name
of controlling women’s sexuality was protected.136 “Women” was too large and
amorphous a group to warrant refugee protection; “Christians, “Sikhs” and
“Blacks” were not”.137
134
for example Campos-Guardada v INS 814 F2d (5th cir 1987), cited in Macklin, above n 51 at 27-28
for example Matter of Pierre 15 I&N Dec 461 (BIA 1975)
136
see for example “No plans to accept victims of sexual bias” Toronto Globe & Mail 16 January 1993 at A
6 quoting the comments of the then Minister for immigration, Bernard Valcourt cited in ibid
137
for example CRDD No 318 No T92-03227 (18 November 1992) cited in ibid
135
PART III
6 International and domestic efforts to remedy the
gendered state of refugee law
The inability of refugee law to adequately deal with the gender specific claims of women
has been recognised internationally and moves have been made to remedy the situation.
The 1988 International Consultation on Refugee Women recognised that “women who
have suffered persecution on the grounds of their sex, and women who have been
sexually assaulted as a form of persecution, are at a distinct disadvantage [because]
persecution on the basis of sex is not recognised in any international refugee
definition”.138
In 1991, the UNHCR Executive Committee issued Guidelines on the Protection of
Refugee Women139 which addressed pertinent problems relating to gender specific
claims, and suggested remedies.140 In 2002, the same body released similar Guidelines on
how to practically assess claims based on gender persecution.141
While important for raising awareness of relevant issues, steps taken to remedy the
gendered state of refugee law at an international level are somewhat superfluous given
that international law is not binding on domestic states.142 Although the suggestions in the
UNHCR Guidelines on how to assess gender specific claims may be excellent, they do
138
Ninette Kelly Report on the International Consultation on Refugee Women, Geneva 15 19 November
1988, with Particular Reference to Protection Problems (1989) Int’L J. Refugee L. 233 at 235
139
see UN Doc: ES/SCP/61 (1991)
140
The UNHCR Guidelines addressed the refugee definition and identified the fact that the persecution
grounds do not include gender as a substantive problem. They also dealt with female specific issues such as
women fearing persecution or severe discrimination on account of the gender, transgression of social
mores, sexual violence and the lack of government protection against abuse on account of transgression of
social mores
141
UNHCR Guidelines on International Protection: Gender-Related Persecution UN Doc.
HCR/GIP/02/01, 7 May 2002. It also issued Guidelines on International Protection: Membership in
Particular Social Group UN Doc. HCR/GIP/02/02, 7 May 2002
142
McCabe suggests that some “states accede to Conventions without any intention of complying, and the
lack of enforcement procedures allow for this to take place. Thus, the treaty’s meaning may be reduced to
mere theoretical guarantees. Hence, at present, it seems that international law affords women no adequate
basis or protection of their fundamental human rights”. McCabe, above n 9 at 426
not provide a solution to the problem, because the country’s which actually assess
refugee claims are not bound to follow them. For this reason, it is more pertinent to the
analyse moves made at a domestic level. Any effort made to remedy the gendered state of
the law in the country where the individual is seeking refugee status will be more
instrumental in effecting the likelihood of the claim’s success.
In recent years, Canada (1993, updated 1996),143 the US (1995)144 and Australia (1996)145
have issued gender guidelines for decision making in asylum cases. Although developed
in different jurisdictions, all the Guidelines146 have the same underlying aim which is to
offer decision makers a method of interpreting and applying the refugee definition in a
gender sensitive manner.147 The content of the Guidelines are very similar. Broadly
speaking, they all delineate forms of harm that are unique to, or are predominately
inflicted on, women, holding that such harms can constitute persecution. Each addresses
the question of whether women can constitute a particular social group (or sub-group
thereof). Finally, on the issue of state accountability, each recognises that where the
perpetrator is a private actor and when the state is unable or unwilling to protect the
victim, the state is accountable - the upshot being that protection is extended to harm
inflicted in “private” sphere.148
The Guidelines also have the commonality that they are merely administrative directives
and not law. They are not binding on decisions made subsequent to the initial
143
Immigration and Refugee Board Immigration and Refugee Board Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution Ottawa (1993) 5 Int’L J. Refugee L. 278. (the updated
version is available at http://www.uchastings.edu/cgrs/law/guidelines.html) [herein after the “Canadian
Guidelines”]
144
Memorandum from Physllis Coven, Office of International Affairs to All INS Asylum Officer and
Headquarters Coordinators US Immigration and Nationalization Service: Considerations for Asylum
Officers Adjudicating Asylum Claims from Women (May 26, 1995) (1995) 7 Int’L J.Refugee L. 700
(available at http://www.uchastings.edu/cgrs/law/guidelines.html) [hereinafter the “US Considerations”]
145
Department of Immigration and Multicultural Affairs Refugee and Humanitarian Visa Applications:
Guidelines on Gender Issues for Decision Issues (available at
http://www.uchastings.edu/cgrs/law/guidelines.html) [herein after the “Australian Guidelines”]
146
The term “the Guidelines” refers to the Australian and Canadian Guidelines together with the US
Considerations
147
Macklin, above n 51 at 27
148
ibid
assessment.149 Thus, a majority of decision makers are not obligated to determine a
gender based claim using the method suggested in the Guidelines and a failure to employ
this method is not a ground for review of the decision. They are merely a guide which the
decision makers are encouraged to read and apply.
Despite their lack of legal force, the Guidelines do represent the only attempt in each of
these three jurisdictions to remedy the gendered state of their respective refugee law. The
aim of this paper is to analyse whether or not the Guidelines have been effective in
providing this remedy.
This analysis will be undertaken by discussing the case law in each of the jurisdictions
that has been decided subsequent to the enactment of the Guidelines. Each case will be
placed under one of four distinct headings depending on which gender specific harm the
female claimant was fleeing. The headings chosen reflect the most common gender
specific harms on which females base their claims for refugee status. The case law will be
grouped under the headings of FGM, repressive social mores, rape or domestic
violence.150 This layout will be beneficial in two ways. Firstly, it will allow for a
comparison between jurisdictions as to how they respectively deal with gender specific
claims based on similar facts. Secondly, it enable an assessment of whether or not the
Guidelines have had the desired effect within jurisdictions of re-shaping domestic refugee
law to be gender sensitive.
149
None of the Courts in any of the jurisdictions are subject to the Guidelines and they are binding on only
some of lower decision making bodies. In Canada, the Guidelines only apply to members of the IRB. They
do not apply to visa officers abroad, with the consequence that women who apply for refugee status outside
Canada do not benefit from the Canadian Guidelines. The US Considerations apply explicitly to asylum
officers. Immigration Judges, the BIA and Courts are not subjected to them. The Australian Guidelines
apply to decision makers who make the initial assessment, but do not apply to the Australian Tribunal.
However, they are unique in their scope, because, unlike the US and Canadian Guidelines, they apply to
both inland and overseas selections process, and to non-refugee humanitarian classes. ibid
150
Other female specific experiences on which claims for refugee status are based include forced marriage,
forced steralisation and prostitution. On assessment of the available decisions since the Guidelines were
issued, it was found that claims based on fear of domestic violence, FGM, repressive social norms or rape
were the most common. Therefore, in order to provide a more complete picture of the current law and the
way it responds to a ‘majority’ of women’s claims, the focus of this section of the paper is on these four
types of harm
7 The effectiveness of the Guidelines in making refugee
law ‘gender sensitive’
7.1 FGM151
All the Guidelines contemplate that a well founded fear of genital mutilation would be
sufficient for a claimant to be granted refugee status.152 However, the subsequent case
law is mixed, and in seemingly identical fact situations, different results are reached.
In all jurisdictions, the practice of FGM has been found to be serious enough to constitute
persecution, and as a result, a majority of claims based on FGM have been granted.153
However, there are still claims that are being dismissed, and for seemingly arbitrary
reasons.154
151
see above n 14 for a description of this type of harm
In a presentation done by Anne Bullesbach in 1999, she demonstrates that FGM could be a reason for
granting refugee status in Canada, the US and Australia. See Department of Immigration & Multicultural &
Indigenous Affairs, above n 31 at 95. Specific reference is made to FGM as being sufficient to constitute
persecution on p17 of the Australian Guidelines
153
In Australia the following claims have been granted since the Guidelines were issued: RRT Reference:
N97/19046 (1997); RRT Reference: N98/22461 (1999); RRT Reference: V98/09568 (2000); RRT
Reference: N98/25465 (2001)
In Canada the following claims were granted or the initial denial reversed by a reviewing body since the
Guidelines were issued: Annan v. Canada (M.C.I.), 1995 2 F.C. 25 (T.D.); Osman v. Canada (M.C.I.),
2001 FCT 158; Sawadogo v. Canada (M.C.I.), 2001 FCT 497; Newton v. Canada (M.C.I.), 2000 File No.
IMM-1159-99; Osman v. Canada (M.C.I.), 2001 FCT 158; T97-03141(1998); A96-00453 (1997); V9500374 (1996)
In the US, the following claims have been granted or the initial denial reversed since the US Considerations
were issued: Matter of Anon, (A# redacted) (New York, NY, Immigration Court, Feb. 28, 2002); Matter of
Anon, (A# redacted) (New York, NY, Immigration Court, Oct. 24, 2001); Matter of Anon, (A# redacted)
(Buffalo, NY, Immigration Court, Dec. 14, 1999); Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999); Matter of
O O, (A# redacted) (New York, NY, Immigration Court, May 20, 1999); Matter of Anon, (A# redacted)
(Buffalo, NY, Immigration Court, Nov. 25, 1998); Matter of M B (BIA, July 10, 1998, unpublished);
Matter of A A, (A# redacted) (York, PA, Immigration Court, Mar. 10, 1998); Matter of S C, (A# redacted)
(Boston, MA, Immigration Court, Feb. 19, 1998); Matter of U S, (A# redacted) (Anchorage, AK,
Immigration Court, Dec. 19, 1996); Matter of M K, (A# redacted) (Arlington, VA, Immigration Court,
Aug. 9, 1995)
154
In Australia, the following claims have been denied since the Guidelines were issued: RRT Reference:
N98/23544 & N98/23541(1998); RRT Reference: N97/18695 (1998); RRT Reference: N97/17540(1999)
In Canada, the following claims have been denied since the Guidelines were issued: U93-08214 (1997);
TA0-00783 (2001)
In the US, the following claims have been denied since the Guidelines were issued: Matter of Anon, (A#
redacted) (Elizabeth, NJ, Immigration Court, Oct. 16, 2001); Matter of A S, (A# redacted) (Philadelphia,
PA, Immigration Court, Aug. 19, 1999); Matter of Anon (BIA, Mar. 14, 2000, unpublished); Oyeyemi v.
INS, 187 F.3d 642 (Table) (8th Cir. 1999), 1999 WL 297065
152
One of the main causes of the divergent case law is the way in which various decision
makers assess the objective well founded fear component of a claim. If a claimant’s story
is not found to be grounded in reality, her claim will be deemed incredible. The
inconsistent way in which Courts decide this issue is demonstrated by contrasting the
following three decisions of the Canadian Federal Court which have almost identical fact
situations. In all cases, the claimant was from Ghana and feared FGM if refouled. In
Annan v Canada,155 the Court held that the claimant established her fear was objectively
well founded because she demonstrated that even though FGM was ‘officially’
condemned by the Ghanaian Government, it was a tolerated and widely practiced
traditional custom. However, five years later, in Newton v Canada,156 the same Court
held that a one year old Ghanaian girl was not in danger of undergoing FGM if refouled
because FGM was not a pervasive threat in Ghana. In 2001, in Sawadogo v Canada,157
the initial determination of the Board was overturned because the Court found that it had
not considered all the available evidence as to the pervasiveness of the threat of FGM in
the Ghana. After consideration of this evidence, the Court found the applicant’s fear to be
well founded and her claim was thus credible.158
The above three cases are based on identical facts, yet have reached divergent outcomes.
Besides highlighting that the law is not gender sensitive in every claim, it is impossible to
discern any precedent because of the conflicting decisions.
The US has adopted a more ‘sensitive’ approach to the issue of credibility as highlighted
in Abankwah v INS,159 where the 2nd Circuit overturned the denial of refugee status by
both the Immigration Judge (“IJ”) and the BIA, finding that the claimant’s fear of FGM,
if she returned to Ghana, was “grounded in reality to satisfy the objective element of the
test for well-founded fear of persecution”.160 While relying predominately on
independent evidence concerning the frequency of FGM in Ghana, the Court suggested
155
(1995) 2F.C. 25 (T.D.)
(2000) File No. IMM-1159-99
157
(2001)FCT 497
158
The Court held that independent evidence clearly indicated that 66% of the female population in Ghana
still undergo excision
159
(1999)185 F.3d at 21
160
ibid at 24
156
that the assessment of this element “may be tempered by individual considerations such
as…experimental, educational and cultural factors particular to the individual
respondent”.161 Goldberg argues that such an approach “captures important gender
dimensions to assessing credibility and to conceptualising persecution”.162
As noted by the Canadian Federal Court in Annan, the 2nd Circuit in Abankwah held that
a fear can be well founded even if the Government in the country of origin is making
‘public’ moves to remedy the harm. Abankwah’s claim was initially denied because it
was felt that her intense fear of FGM was not ‘reasonable’. The Government of Ghana
was taking steps to eliminate the practice of FGM throughout the country and therefore, it
was considered possible for the applicant to turn to her Government for protection. The
2nd Circuit recognised that even though officially sanctioned, FGM was still a pervasive
cultural tradition, and thus her fear was well founded. Likewise, the Australian Refugee
Tribunal163 held that even though the Ghanaian Government intended to provide
assistance to women by outlawing FGM, evidence suggests that the practice is still
endemic.164 The recognition of the reality of women’s experiences is a step forward in
making the law gender sensitive.
Turning aside from the issue of credibility, decision makers have found women who fear
FGM can sometimes constitute “a particular social group” for the purpose of fulfilling the
nexus requirement of the refugee definition. In Matter of M-K,165 the IJ granted asylum to
a woman from Sierra Leone who feared FGM. The IJ found that a particular social group
comprising of “women who are compelled to endure female genital mutilation” existed
and that the claimant was a member. Likewise, the BIA in Re Kasinga166 found that the
claimant belonged to a social group, consisting of “young women of the tribe that oppose
161
ibid
Pamela Goldberg Analytical Approaches in Search of Consistent Application: A Comparative Analysis
of the Second Circuit Decisions Addressing Gender in the Asylum Law Context 66 Brook L. Rev. 309 at
317
163
RRT Reference: N98/25465 (12 January 2001)
164
The Tribunal was presented with evidence that no arrests had been made for FGM during 1999. Based
on this, it was concluded that the outlawing of the practice was obviously not being enforced
165
(1995)A72-374-558
166
Re Kasigna Int. Dec. 3278 (BIA 1996)
162
the practice of female genital mutilation and that have not yet been subjected to the
practice”, by applying the immutable characteristic test. The immutable characteristics of
the social group identified included gender, ethnicity, opposition to the practice and the
fact of having intact genitalia.167
While finding that these groups exist is beneficial for the individual claimants because
their application for refugee status is granted, it does not promote consistency or clarity in
the law. The problem of circularity which results from defining a social group by the
persecution they fear is present and the narrowness of the group defined decreases the
likelihood of the decision providing useful precedent. Thus, the law is rendered no clearer
than before the Guidelines were issued.
7.2 Repressive social mores168
A woman fleeing repressive social mores would struggle to find refuge in either Australia
or the US, as case law decided subsequent to the Guidelines suggests that neither
jurisdiction would deem the claim to fit within the parameters of their domestic refugee
law. By comparison, Canada appears to provide a more welcoming haven.
A common basis for the denial of such claims in Australia and the US is that the harm is
not considered ‘serious enough’ to constitute persecution. Academics argue that this
stance derives from a fear of allegations of cultural imperialism.169 Regardless of the
theoretical basis, the practical upshot is that women are deemed not to fall within the
refugee definition, and thus are left without protection.
The 9th Circuit in Fisher v INS 170 declared that while dress restrictions on Iranian women
constituted sex discrimination, they did not amount to persecution. Judge Wallace
commented that “the mere existence of a law permitting the detention, arrest or even the
167
Hunter, above n 28 at 117
see n 16 for a description of this type of harm
169
Macklin, above n 51 at 34
170
79 F.3d 955 (9th Circuit 1996)
168
imprisonment of a woman who does not wear a chardor in Iran does not constitute
persecution any more than it would if the same law existed in the US”.171
Moreover, the Court held that even if the harm was considered persecutory, the claimant
did not satisfy the well-founded fear component because there was “no evidence
suggesting that if she returned to Iran, Fisher would not conform with the regulations”.172
This logic is similar to that employed by the Court in Fatin v INS,173 a case decided
before the Guidelines were issued, which rejected the claim of the applicant on the
grounds that it did not believe “obeying the rules would be profoundly abhorrent to
her”.174 Thus, the law appears to be that it is only when a woman is prepared to always
flout social mores regardless of the consequences (which may be as severe as her
murder), will the harm be considered persecutory.
Australian case law appears in line with the reasoning by the majority in Fisher and
Fatin, as seen in the following decision by the Australian Tribunal.175 The Tribunal
affirmed the rejection of an Iranian applicant who objected to the generalised oppression
of women in that country, and in particular, feared being subject to forced marriage and
punishment for violating Islamic dress codes. The Tribunal’s reasoning included the
following remarks:
“The treatment of women in Iranian society is quite abhorrent and
unacceptable….nevertheless….it falls short of what I consider amounts to
persecution as understood in the Convention. Of course, whipping, stoning, rape,
arbitrary execution and imprisonment and other such practices are clear cases of
persecution. But it is open in Iran to avoid such treatment by complying with the
requirements of Islamic law. I understand it is highly irksome for many women to
comply with these regulations…however the regulations do not of themselves
171
ibid at 962
ibid
173
12 F.3d 1233 (3rd Circuit 1993)
174
ibid at 1255
175
RRT Reference: V97/05699 (July 21, 1997)
172
infringe any fundamental human rights or otherwise make life utterly
unbearable”. [my emphasis]
Like the US, the Tribunal suggests that the option is always there for a woman to simply
abide by the laws of her country in order to avoid persecution. However, such a view
undermines any real chance of a woman exercising her religious or political beliefs, and
as such, the law employs a double standard when dealing with claims of women. Macklin
demonstrates this duality in the following non-gendered analogy: if a law mandated
Orthadox Jews or Muslims to eat pork in violation of the dietary rules of each faith, it is
highly unlikely that a decision maker would find that such a law did not constitute
persecution because a Jewish or Muslim individual could simply avoid the penalty for the
violation by eating pork.176
The law in both the US and Australia appears at odds with the intent of the Guidelines, as
noted by the dissenting judgment in Fisher.177 Although discussing the US, this judgment
acutely observes the diverging aim of the Guidelines and the current state of the law, a
criticism which can be levelled at both jurisdictions. The minority opinion takes strong
issue with the majority’s failure to recognise the Guidelines’ call for greater
acknowledgement of persecution directed at women for displaying opposition to the
Government. It further criticises the majority’s failure to accept “the guidelines invitation
to develop asylum law with special attention to the problems of women oppressed on
account of their nonconformity with the moral codes of a rigorist regime”.178
Canada adopts a more liberal approach to what constitutes persecution relative to the US
and Australia. In Namitbar v Canada,179 the Federal Court found that 75 lashes for breach
of the Iranian law governing a woman’s dress was disproportionate to the objective of the
law and constituted persecution. The Court therefore did not say that the claimant should
just abide by the law in order to avoid persecution, but instead granted asylum on the
basis that she may be subjected to harsh punishment if she flouted social mores. Note that
176
Macklin, above n 51 at 36
see above n 170 (Noonan and Fletcher JJ dissenting)
178
ibid at 967
179
(1994)F.C.42
177
by focusing on the penalty as persecutory, the Court circumvented judging the legitimacy
of the law itself and neatly avoided any potential cultural relativist accusations. However,
such an approach presumably means that if there was no punishment for a breach of
Islamic law, asylum would not be granted.
While Canada’s approach is not the perfect solution because there is a strong argument
by academics that the repressive social mores should in themselves constitute
persecution,180 it is by far preferable to the position in Australia and the US which
suggests that the claimant should simply abide by the law in order to avoid persecutory
punishment.
In addition to convincing a court that they harbour a well founded fear of persecution, a
claimant must also satisfy the nexus requirement which demands that she prove she will
suffer persecution “on account of” one of the five enumerated grounds. Claims of this
nature are most commonly brought under the head of political opinion or religion. 181 It
has been discussed above the difficulty a claimant would encounter in Australia and the
US in satisfying this element. Both jurisdictions only consider the flouting of a social
norm as demonstrating a woman’s political opinion or religion when it is adhered to
absolutely. In the above decision, the Australian Tribunal considered the fact that “the
applicant has shown no history of willfully flouting Islamic regulations”182 as proof that
she did not object to the strictures imposed on her as a woman. Likewise in Matter of N
Q183, a US Immigration Court found that photos of the claimant wearing a chardor
provided evidence that she did not object to Islamic law’s subjugation of women. Both
cases essentially required the claimant to court persecution in order to validate her
political opinion or religious beliefs and thus to prove the nexus requirement.184
180
Deborah Anker Refugee Law, Gender and the Human Rights Paradigm 15 Harv.Hum.Rts.J.133;
Charlesworth, above n 38; Ghasemi, above n 16
181
Spijkerboer, above n 2 at p117
182
see above n 175
183
(1997) (A# redacted) (New York, NY, Immigration Court, Oct. 17, 1997
184
Macklin, above n 51 at 36
This difficulty will hopefully not be encountered in Canada, which adopts a more gender
sensitive interpretation of what constitutes a demonstration of a political opinion or
religious belief, although there are no cases directly on point. The Canadian Guidelines
alert decision makers that “where women are assigned a subordinate status and the
authority exercised by men over women results in a general oppression of women” 185 the
political protect and activism engaged by women may manifest different than the modes
expressed in by men.186 Concerning the enumerated head of religion, the Canadian
Guidelines propose that freedom of religion includes the right not to practice a religion
(or prescribed version of that religion). On the face of it, the Canadian Guidelines do not
seem to require the same extreme conduct in order to prove the nexus requirement as the
US and Australia. However, until there is a case on point, no conclusive remarks can be
made.
7.3 Rape187
Prior to the Guidelines, the main obstacle for claims based on rape was that decision
makers did not characterise the harm as persecution, but rather saw it as an act of private
lust which was not perpetrated on account of a Convention reason. However, in many
cases this was a mis-characterisation as it was often clear that a woman was raped
because of her political opinion, nationality, membership of a social group or political
opinion.188
The Guidelines in all jurisdictions recognise that certain forms of persecution may be
inflicted exclusively or more commonly on women. However, only the Canadian and
Australian Guidelines specifically mention rape. The High Court of Australia has
commented that “persecution for a convention reason may take an infinite variety of
forms”.189 Rape may be one such form, as explained in the Australian Guidelines, where
it suggests that rape may be used to punish a victim, humiliate others or as a part of a
185
Canadian Guidelines at 4 (see above n 143)
ibid at 40
187
see n 15 for discussion of this type of harm
188
Anker, above n 6 at 772
189
Applicant A v Minister for Immigration & Ethic Affairs (1997) 190 CLR 225 at 258 per McHugh J
186
campaign of ethnic cleansing.190 The Canadian Guidelines make the point that the
pervasiveness of rape does not detract from its persecutory character.191
The Australian and Canadian Guidelines awareness of the real motivation behind certain
acts of rape appears to have filtered into subsequent case law. The Canadian Federal
Court remitted for rehearing the claim of a woman from the Democratic Republic of
Congo who alleged she had been raped and tortured as a result of her political opinion
and membership in a particular social group.192 The claimant was politically active, and
she was arrested by soldiers and kept imprisoned for five days. During this time, she was
beaten repeatedly and raped twice. The initial determination failed to consider the rapes
as it was felt they were not significant to the claim. On appeal, the Federal Court decided
that the Board had erred and instead held that the rapes were perpetrated on account of
her political opinion and thus central to proving the nexus requirement.
Likewise the Australian Tribunal recently accepted that a claimant’s fear of rape was
directly linked to her political activity and membership of a social group.193 The Pakistani
claimant was heavily involved with various political groups dedicated specifically to
helping domestic violence victims and generally promoting female autonomy. The
claimant was consistently harassed by members of the local community, and on one
occasion, her house was ransacked. Because many other women in her group had been
raped by locals, the claimant feared she would also be raped. The Tribunal held that the
nexus element was satisfied finding that “the applicant fears harm from non-state agents
by reason of her political opinion”.
Despite the apparent gender sensitivity that Canada and Australia demonstrate, a lot of
claims based on rape are still denied, because the applicant’s fear is held not to be
objectively well founded. In the decision of the Australia Tribunal discussed above,
despite satisfying the nexus requirement, the claimant was ultimately denied asylum. The
190
Australian Guidelines at part 4.7 (see above n 145)
Canadian Guidelines at p7 (see above n 143)
192
Mayeke v Canada (M.C.I.) (1999) File No. Imm 2496-98
193
RRT Reference: N99/27792 (15 November 2002)
191
Tribunal held that she could seek adequate protection from the Pakistan Government.
This was decided even though it was conceded that “she may experience [the harm] again
if she returns to Pakistan now, or in the reasonably foreseeable future, and resumes her
activities fighting for women’s rights”. The Canadian Federal Court recently dismissed
the claim of a Sri Lankan woman on the basis that her testimony did not accord with the
independent evidence presented to the decision maker.194 The problems associated with
relying heavily on independent evidence have been identified above, and a more
expansive discussion takes place later in this paper.
Although the US Considerations do not explicitly mention rape as a form of persecution,
decision makers have nevertheless shown an increasing tendency to characterise rape as
motivated by a Convention reason. In Angoucheva v INS195 the 7th Circuit overturned the
view of the lower tribunal that sexual abuse of political dissidents was a product of sexual
attraction. Likewise, in Lopez Galarzo v INS,196 it was held by the 9th Circuit that the
claimant was raped and beaten on account of her political beliefs. Only four years later,
in Shoafera v INS,197 the 9th Circuit displayed similar sensitivity to the plight of an
Ethiopian claimant who claimed she was persecuted because of her ethnicity. Nigist
Shoafera, the applicant, testified to the IJ that she believed Hagos Belay, a high ranking
Tigrean man for whom she worked, raped her because of her Amharic ethnicity.
Specifically, Nigist testified that he raped her “cause I’m Amhara. If I was a Tigrean he
wouldn’t do it”.198 The IJ doubted that the rapist’s motivation stemmed from the
Applicant’s ethnicity, but rather he raped her “because he believed that he had the
authority and impunity to carry out his sexual depravities”. 199 The 9th Circuit overturned
this finding and held that “Shoafera’s uncontroverted and credible testimony was
sufficient to establish that she was persecuted on account of her ethnicity”.200
194
Ahamadon v Canada (M.C.I) (2000) File No. IMM-1257-99
106 F.3d 781 (7th Cir. 1997)
196
99 F.3d 954 (9th Cir, 1996)
197
288 F.3d 1070 (9th Cir 2000)
198
ibid at 1072
199
ibid
200
ibid at 1075
195
However the case law is not consistent and, in many cases, rape is still considered not to
be motivated by a Convention reason. In Basova v INS201 the deportation of a rape victim
was upheld because it was felt that rape and abuse are “strictly personal actions which do
not constitute persecution within the meaning of the statute”.
7.4 Domestic Violence202
Domestic violence is the most frequent and prevalent gender specific experience as it is
universally suffered by women regardless of geographic location or culture. The
international community has acknowledged that domestic violence is a human rights
violation as evidenced in the United Nations Declaration on the Elimination of Violence
against Women.203 Despite this, women applying for refugee status on the basis that they
are victims of domestic violence still face what are often insurmountable hurdles in all
jurisdictions and, as a result, are frequently left without international protection.
It has been discussed above that a claimant must be unable to, or be unwilling to, avail
herself of the protection offered by her own State to be considered a refugee. In order to
satisfy this element when the claim is premised on domestic violence, it must be
demonstrable that the Government in the country of origin affords no protection to
victims of this harm. However there is often a large discrepancy between the figment and
the reality of the protection offered, and unfortunately decision makers in all jurisdictions
frequently seem unaware of this difference.
In order to discern whether or not state protection is available in a claimant’s country of
origin, decision makers rely on independent evidence which detail measures (if any)
undertaken by the Government in the country of origin to address the harm. Whether a
refugee application will be granted frequently turns on this issue, as seen in a recent
decision of the Australian Refugee Review Tribunal.204 The Tribunal denied the
application of a Pilipino domestic violence victim because based “on the independent
country information available to the Tribunal, the Philippines Government is taking
201
available at 1999 WL 495640 at *1*3 (10 Cir.1999)
see n 17 for a description of this type of harm
203
UN Doc. A/48/49 (1993)
204
RRT Reference: N01/36684 (20 April 2001)
202
effective measures to reduce the level of domestic violence and to implement strategies
aimed at supporting its citizens who are subjected to such abuse”.205 It was held that the
“applicant would be able to obtain adequate state protection from the Philippines
authorities”. Ironoically this decision was reached even though the Tribunal
acknowledged that “the Philippines Government could not be expected to guarantee
protection to all its citizens all of the time”.
A decision to deny refugee status based on the belief that the claimant can obtain
adequate protection in her own country presupposes that the independent evidence relied
on portrays the real situation in the country in question. However, this is not always the
case. Kristine Fox suggests the method of collecting independent information is seriously
flawed, using the American State Department’s Bureau of Human Rights and
Humantarian Affairs (BHRHA) as an example.206 BHRHA always issues an advisory
opinion regarding the conditions in an applicant’s country in any refugee claim, and
asylum decisions usually reflect the content of the opinion. In other words, if the opinion
suggests that protection is available in the country of origin then the asylum application
will usually be denied.207 However, Fox submits that the structure of the BHRHA is
seriously flawed. The opinions it issues more readily reflect foreign policy goals 208 and
“as such the Deparment lacks the incentive to gather and report potentially damaging
information about human rights abuses, especially occuring in nations supported by the
US”.209 As a result the reliability of the independent evidence is called into question.
Decision makers display mixed awareness of this distinction between the portrayed and
real climate in a given country of origin, as demonstrated by the following two Canadian
205
The Tribunal found that there were a number of women's support groups and crisis centres, nongovernment organisations and a range of Government help facilities for women suffering violence. It noted
that while police had in the past been reluctant to act in domestic violence matters, with wider community
education about the Government's efforts to fight domestic violence, the police are now more willing to
respond to complaints of abuse
206
Fox, above n 44 at 125
207
ibid
208
Removal of the State Department from its role as advisor on the conditions in an applicant’s country of
origin has been proposed in the past. However, the action was heavily protested by the State Department on
grounds that an unaffiliated group’s opinion may conflict with its own opinion and potentially compromise
foreign policy interests. ibid at 141
209
ibid
decisions. In both cases, the claimant was a Jamacian woman who based her refugee
claim on long term, serious abuse at the hands of her intimate partner. In the first case210
the abuser was a member of the civilian militia and in the second, a police officer. 211 In
the first case the claimant had attempted to gain state protection by phoning the police
twice. However, on finding out the abuser’s military connections, the police left without
assisting the claimant. In the second case, the claimant did not report the abuse to the
police because “she would be reporting to her husband’s collegues and they would not
take action against him”.212 The cases were heard within five months of each other, and
during that time, the objective country conditions in Jamacia had not changed.
In the first case, the panel granted the application as it found the claimant could not avail
herself of state protection. In reaching this decision, it took into account documentary
evidence that domestic violence is not taken seriously by police, restraining orders are
frequently ineffective, only two crisis centers in Jamacia exist and recent legislation
specifically addressing domestic violence had not yet been implemented.213 In the second
case, the panel denied the claimant refugee status because she failed to “meet the onus of
providing clear and convincing evidence of the state’s inability or unwillingness to
protect her should she return to Jamacia”.214
The difference in the outcomes is that the “first panel looked beyond the theoretical
availabilty of state protection and evaluated whether it really exists. The seond panel
neither asked nor answered the question does state protection exist in practice or merely
on paper?”215 The inability of some decision makers to assess the reality of a woman’s
situation often results in the denial of refugee status to legitimate applicants.
210
CRDD No 62, T95-01011/12 (July 30 1996)
CRDD No. 204, T95-04279 (Dec 30 1996)
212
ibid. at para 10
213
see above n 210at para 18 - 26
214
see above n 211at para 21. The panel noted the ‘mixed’ effectiveness of the new legislation, but said that
“new legislation whether in Jamaica, Canada or any other democracy takes some time before it is
effectively implemented in all sectors of the population”. The panel also listed the provision of women’s’
shelters as evidence of available state protection
215
Macklin, above n 51 at 38
211
Another obstacle for a woman basing a claim on a well founded fear of domestic violence
is satisfying the nexus requirement of the refugee definition. In other words, the difficulty
lies in proving that she was persecuted on account of one or more of the enumerated
heads. There is a tendency in some jurisdictions not to find a nexus and conceptualise the
harm as private, which simply renders the law in its pre-Guidelines position.
In Matter of R-A,216 a Guatemalan woman applied for asylum seeking refuge from 10
years of severe and life threatening abuse at the hands of her husband, but was denied her
application by a US Court which characterised the spousal abuse as “private acts of
violence” that did not warrant asylum protection.217
In Australia, the jurisprudence is mixed. In Milosevska v MIMA218the Federal Court held
that domestic violence cannot, by itself, provide a sufficient basis for refugee status
because the Convention is not engaged where the harm or threat of harm is a result of a
personal relationship. Similarly, Justice Weinberg in Minister for Immigration and
Multicultural Affairs v Nedge219 overturned the decision of the Australian Refugee
Tribunal220 by characterising the harm as private. His Honour found that the perpetrator
of the violence (the applicant’s husband) had not been motivated by a convention reason.
216
Int.Dec. 3404 (BIA June 11 1999) vacated (A.G. Jan 9, 2001). The claimant, Rodi Alvarado Pena
married a Gautemalan army officer at age 16, and was subjected to intensive abuse from that day forth. Her
husband raped her repeatedly, attempted to abort their second child by kicking her in the spine, dislocated
her jaw, tried to cut off her hands with a machete, kicked her in the vagina and used her head to break
windows. He terrified her by bragging about his power to kill innocent civilians with impunity. Even
though many of the acts took place in public, police failed to help her in any way. After she made out a
complaint, her husband ignored three citations without consequence
217
Anita Sinha Domestic Violence and US Asylum Law: Eliminating the “Cultural Hook” for Claims
involving Gender – Related Persecution (2001) 76 N.Y.U.L Rev 1562 at 1563. The decision in this case
has since been vacated by Attorney General Janet Reno and has been remanded to the BIA for
reconsideration. The BIA has been directed to stay proceedings until after the proposed amendment to the
federal regulations pertaining to asylum adjudication. As yet the proposed amendments have not been
enacted (see section 8 below for a discussion of the amendments) and so Rodi Alvarado continues to wait.
She has now been in the US for 8 years, cleaning houses, without her two children whom she was forced to
leave with relatives in Guatemala and waiting to hear if she can remain within the safety of the country to
which she escaped (see Jenny-Brooke Condon Asylum Law’s Gender Paradox (2002) 33 Seton Hall L.Rev
207 for a discussion of this case)
218
[1999] FCA 830
219
FCA 783 (unreported Weinberg J, 11 June 1999)
220
The Tribunal had granted the applicant asylum as it found that there was a real chance the claimant
would suffer serious harm at the hands of her husband if she were returned to her country of origin, and that
such harm would constitute persecution for a Convention reason, namely, by reason of her membership of
While such position is reminiscent of the law pre-Guidelines, the Federal Court in
Minister for Multicultural Affairs v Khawar221 has adopted a more gender sensitive
approach. The Court held that in order to satisfy the nexus requirement it is not necessary
to show that the act itself was inflicted on the claimant by the non-state actor for a
Convention reason. Instead, a claimant need only demonstrate that the state failed to
protect her because of a Convention reason.222 In this case, the claimant proved to the
Court’s satisfaction that she was not afforded protection by the state because of her
membership of a particular social group. Lindgren J (Matthews J agreeing) held that if
the authorities in Pakistan routinely withheld from “women in Pakistan”, or “married
women in Pakistan”, protection from violence by men or by their husbands, that was
persecution by the state “for reasons of” membership of a particular social group.223
Such an approach increases the likelihood of satisfying the nexus requirement, but
unfortunately, this commendable decision has not been consistently followed. A recent
Refugee Review Tribunal decision rendered subsequent to Khawar followed the
reasoning of Nedge holding that “the violence which the applicant was subjected to by
her husband arose from personal considerations” and was not “perpetrated against her [in
relation] to a Convention reason”.224 However, in light of the High Court’s decision in
the particular social group ‘married women in Tanzania’. For a discussion of this case see Rachael Bacon
and Kate Booth The Intersection of Refugee Law and Gender: Private Harm & Public Responsibility
Islam; Ex Parte Shah Examined (2000) 23(3) UNSW Law Journal 135 at 157
221
(2000)FCA 130 (Hill, Mathews and Lindgren JJ)
222
The applicant in this case claimed she feared persecution at the hands of her abusive husband and her
husband’s family. She also claimed that on four occasions she sought assistance from the police in Pakistan
but on each occasion she was not taken seriously, met with refusal to document her complaint or had her
complaints recorded inaccurately. After an incident in which her husband and his brother poured petrol on
her clothing and threatened to set her alight, she was told by a police officer that women were the cause of
the problem and that she should ‘go and do her own work’. The applicant claimed that after that she knew
she would never get any help from the police, so she fled and sought asylum in Australia. The Refugee
Review Tribunal accepted that the applicant was a victim of domestic violence but found that the
motivation behind the violence arose out of a personal relationship between herself and her husband. The
Tribunal did not accept the claimant’s argument that her husband targeted her because of her membership
of a particular social group comprised of ‘women’ or ‘married women in Pakistan’
223
Nikola Lusk When State Silence Becomes Persecution: The case of Domestic Violence in Minister for
Immigration and Multicultural Affairs v Khawar (2001) 21(2) University of Queensland Law Journal 227
at 229
224
RRT Reference: N00/35819 (27 June 2002)
Khawar discussed below, which supports the Federal Court on this particular issue, the
law would now seemed settled in Australia.
Most typically, claims based on domestic violence are brought under the category of
‘membership of a particular social group’. It would be of most benefit to gender based
claims if the law recognised ‘women’ as a particular social group in and of themselves.225
However this has not yet occurred in any jurisdiction. Nevertheless, there has been some
progress and gender has been found to play an important, albeit not central, role in
defining social groups. This is a step forward, especially for victims of domestic violence
who find it particularly hard to argue that they fear harm because of their political
opinion, race, religion or nationality. A liberal and gender sensitive construction of the
particular social group category is conducive to refugee claims based on a well founded
fear of domestic violence.
The most recent Australian authority on point is the High Court’s decision in Minster for
Immigration & Multicultural Affairs v Khawar226 which held that it was open for the
Tribunal to find that the applicant belonged to a particular social group, being at its
narrowest according to McHugh and Gummow JJ, ‘married women living in a household
which did not include a male blood relation to whom the woman might look for
protection’. The gender of the applicant is imperative because membership of the social
group is confined, in part, to married ‘women’.
In constructing this particular social group, the majority followed their own decision in
Applicant A v Minister for Immigration and Ethnic Affair227 which held that such a group
“is a collection of persons who share a certain characteristic or element which enables
them to be set apart from society at large…not only must they exhibit some common
element, the element must unite them, making those who share it a cognisable group
There are numerous academic papers on the benefits of defining “women” or “gender” as a social group.
See Neal, above n36; Connors, above n 43 ; Fullerton, above at n 124; Sidun, above n 89
226
(2002) 76 ALJR 667 (Gleeson CJ, Gummow, McHugh and Kirby JJ, Callinan dissenting). This case was
an appeal from the Federal Court decision discussed above
227
(1997) 142 ALR 331
225
within their own society”.228 The majority found ‘gender’ to be one such characteristic
shared by women that made them distinct from society at large, and was partly sufficient
to satisfy the requirements of the social group category.229 Here the High Court’s
reasoning is in line with that of learned scholar James Hathaway, who submits that
precisely “because it is an innate and immutable characteristic…. [gender] is properly
within the ambit of the social group category”.230 The Court is also in accordance with
Canada’s gender sensitive approach on how to construct a social group, which has not
changed from the pre-Guidelines decision in Canada v Ward231 which was discussed
above.
While Australia and Canada have adopted a gender sensitive interpretation of the social
group category, its beneficial impact has been tempered by the narrow and fact specific
manner in which the social groups are constructed. As a result, the law in both
jurisdictions is stuck in its pre-Guidelines position. Decision makers tend to string
virtually all the qualities, circumstances and features of a claim to construct a social
group232 as seen in the following Canadian case which found a social group comprised of:
New citizens of Israel who are women recently arrived from the former Soviet
Union and who are not yet well integrated into Israeli society, despite the
generous support offered by the Israeli Government, who are lured into
prostitution and threatened and exploited by individuals not connected to
government, and who can demonstrate indifference to their plight by front-line
authorities to whom they would normally be expected to turn for protection233
228
ibid at 341
As a side note, there has been a recent change in the composition of the High Court. Justice Hayne, who
is renowned to be a conservative on the issue of judicial activism and statutory interpretation, has been
appointed as a replacement for Mary Gauldron. Whether or not this appointment will actually have any
effect on the way that the High Court liberally interprets the social group category remains to be seen, but it
is suggested that Hayne will probably temper any attempts at a radical interpretation of the social group
category
230
Hathaway, above n12 at p 20
231
see above n 10
232
Macklin, above n 51 at 43
233
Litvinov v Canada (1994) F.T.R. 60
229
Although being a woman is a ‘common characteristic’ of members in this social group,
the fact specificity defining the group renders the decision useless as precedent because it
so narrow that probably no one except the applicant is a member. 234 The decision fails to
advance the gender sensitivity of the law, but rather renders it “conceptually muddled and
practically unwieldy”.235
The tendency for decision makers to narrowly construe social groups is, as it was preGuidelines, based on the fear that a wide interpretation would result in an inundation of
refugee claims. Broad characteristics such as being a ‘women’ or one’s ‘gender’ are
considered insufficient to constitute a particular social group because it is feared that this
will mean all women refugees will be entitled to refugee status. Decision makers dismiss
the possibility of such a group outright, as demonstrated by Callinan J in Applicant A236
where he doubted whether “half the humankind of a country, classified by their sex”237
could amount to a social group.
This stance has been widely criticised by both minority voices in the judiciary and
various academics. These dissidents argue that the size of a social group should not act as
a deterrent to finding such a group exists, citing as support the fact that religion,
nationality and political opinion are also characteristics shared by a large number of
people.238 Kirby J of the High Court of Australia referred to the six million Jews who
were ‘incontestably persecuted’239 during the Holocaust in demonstrating that the size of
a social group is not fatal to its existence.240
Other examples of a narrowly defined social group include: “single women suffering abuse at hands of
former spouses…who have been forced into prostitution” (In re D.J.P., [1999] C.R.D.D. N.155) “women in
El Salvador abused by a perceived partner, a rebuffed ex-boyfriend” (In re F.Z.A. [2000] C.R.D.D. No.139)
and “a family including two minor children led by a single parent female with serious mental health
problems, in a country with serious social and economic problems with a documented negative effect on
women and children” (In re K.B.A. [2001] C.R.D.D. No.85)
235
Macklin, above n 51 at 43
236
see above n 227
237
ibid at 375
238
Macklin, above n 51 at 43
239
see above n 227
240
Nicholas Bender Refugee Status (2002) 76 ALJ 430 at 431
234
Notwithstanding these logical criticisms, the upshot is that the current law is confused
because social groups are defined too narrowly. This confusion cannot be remedied
through defining a social group which has general application, because it is feared that a
‘flood’ of refugee claims will ensue.
Australian has been more progressive in one ‘pre-guideline’ problem area regarding the
definition of social groups relative to Canada. The High Court in Applicant A,241 in an
approach endorsed in Khawar,242 held that persecution cannot, by itself, define a social
group. In doing so, the Court avoided the circularity inherent in defining a group by the
persecution feared. 243 Canada has not followed suit, and particular social groups are still
defined by reference to their persecution. As such, the law in Australia is arguably
clearer.
However, despite this clarity, Australian law is no more gender sensitive. In light of the
two proceeding paragraphs, the position in Australia is now that ‘women’ cannot
constitute a social group, because such a group is too broad, while ‘women who suffer
domestic violence’ cannot constitute a social group because of circularity issues. The
question then becomes, how are social groups meant to be defined when two such
obvious groups are not allowed?
Regardless of the response to this unanswerable
question, the upshot is that, in Australia, women lose out no matter what.244 At least in
Canada, even though it is circular, a social group comprised of ‘Trinidadian women
subject to wife abuse’245 was found to exist, and thus, the victim of domestic violence
was offered protection under Canadian refugee law.
The Australian and Canadian gender sensitive approach can be contrasted to that of the
US which, in domestic violence cases, tends to adopt a “voluntary association test” when
defining social groups. This test is much more restrictive in its scope and, in domestic
violence fact situations, virtually impossible to satisfy.
241
see above n 227
see above n 226
243
Bacon & Booth, above 220 at 146
244
Macklin, above n 51 at 44
245
see above n 107
242
In the Matter of R-A246 the BIA denied the existence of a social group comprised of
“Guatemalan women who have been intimately involved with Guatemalan male
companions who believe that women are to live under male domination”. The BIA stated
that to satisfy the social group requirement, an asylum applicant must demonstrate that
“members of the group generally understand their own affiliation with the groupings as
do other person in the particular society”. In other words, the claimant had to satisfy the
voluntary association test, which, in these circumstances was impossible. The claimant
was violently abused when her husband found out she was pregnant. 247 The motivation
for the abuse stemmed from the claimant’s pregnancy, something largely beyond her
control and innate to her status as a woman, and was not provoked by an active choice
made by the claimant.248 This case highlights the problems inherent in applying the
voluntary association test to gender based claims.
The application of the voluntary association test in this case conflicts with the BIA’s
earlier decision in Re Kasigna, where it adopted the immutable characteristic test,249
which, as has already been explained, is more conducive to claims based on domestic
violence. It is hard for any claim based on a gender specific experience to satisfy the
voluntary association test. However, the problem is compounded for victims of domestic
violence because they, unlike women experiencing other types of gender specific harm,
find it hard to prove a nexus with other enumerated heads. While it may be open to a
victim of FGM to argue she is persecuted because of her political opinion, 250 such a
choice is not available to a woman fearing domestic violence. It would be very difficult
for a woman to prove, to the decision maker’s satisfaction, that she was abused or fears
abuse by an intimate because of her religion, race, nationality or political opinion. This is
because, in most cases, it is not the truth: she was or will be persecuted simply because
246
see above n 216
Her husband dislocated Alvarado’s jaw when her menstrual period was late and kicked her “violently”
in the spine “when she refused to abort her 3 to 4 month fetus”
248
Condon, above n 217 at 213
249
In Matter of R-A the BIA stated that the immutable characteristic test is merely a threshold inquiry for
what could constitute membership in a particular social group, and not a final method of determining the
existence of such a group. See above n 216 at 16
250
For example, the political opinion that she does not believe women should undergo the procedure
247
she is a woman. The social group category becomes her only choice, but in the US, it is
largely not available due to the application of the voluntary association test. Therefore,
the nexus requirement is not satisfied, and domestic violence is relegated once more into
the private sphere where its victims are outside the scope of protection offered by refugee
law.
However, case law is not consistent in the US, and some hope is offered by the recent
decision in Matter of A-N251 which found, by applying the immutable characteristic test,
that a woman fleeing abuse from her husband in Jordan was a member of a particular
social group comprising of ‘married, educated, career orientated Jordanian women’. She
was subsequently granted asylum.
Likewise, the 9th Circuit recently found in Aguirre – Cervantes v INS252 that a social
group consisting of the claimant’s family existed, a group which had the immutable
characteristic of kinship ties. In this case, the applicant was a young woman from Mexico
who claimed asylum in the US on the ground that her father had repeatedly and severely
beaten her and the Government of Mexico had failed to protect her. However, this
reasoning is problematic. While the outcome was positive for the individual claimant
because she was granted asylum, the way that the 9th Circuit formulated the social group
cuts out any chance of attributing responsibility to the state. Adams argues that if the only
logical way to establish refugee status for domestic violence victims is to define the
victim’s particular social group as their own family, domestic violence is likely to
continue to be viewed as a purely private and personal harm. And, this is already one of
the chief criticisms of conferring refugee status on domestic violence victims.253
8 The impact of recent legislative changes on the
‘gender sensitivity’ of US and Australian Refugee Law
251
(A# redacted) (Elizabeth, NJ, Immigration Court, Aug. 1, 2000)
242 F3d. 169, 1176 (9th cir.2001), reh’g granted en banc 270 F3d.704, vacated,273 F.3d 1220 (2001)
253
Laura S Adams Beyond Gender: State failure to Protect Domestic Violence Victims as a Basis for
Granting Refugee Status (2002) 24 T.Jefferson L.Rev 239 at 242
252
Both the US and Australia have recently enacted, or are intending to enact, legislation
that will have a significant impact on the way each jurisdiction interprets claims based on
gender specific experiences. Although the legislative amendments were embarked on
with different objectives in mind, the changes will drastically decrease the gender
sensitivity of the law.
In 2000, the US Immigration and Naturalization Service (“INS’) proposed amendments
[‘the INS proposal’] to the federal regulations that govern asylum eligibility in the wake
of the BIA’s decision in Matter of R-A.254 Inspired by the public outcry that ensued after
the claimant in this case was denied asylum, the INS proposal is designed to aid in the
assessment of claims made by applicants who have suffered or fear domestic violence. 255
In fact, the INS note states that the proposal’s purpose is to “remove certain barriers that
the Matter of R-A decision seems to pose to claims involving domestic violence”.256
Although the proposal appears to be specific to domestic violence, it can have application
in other cases.
While the INS proposal was issued with the benevolent intent of making US refugee law
more sensitive to the plight of claimants fleeing gender specific experiences, Australia’s
legislation, Migration Legislation Amendment Act (No6) 2001 (‘the Act’) was enacted
for the opposite reason.
In 2001 the Minister for Immigration, Mr Philip Ruddock, raised the Federal Court
appeal of MIMA v Khawar (1999)257 in Parliament to support his argument that the
definition contained in the Refugee Convention had been interpreted too broadly in
Australian Courts and Tribunals.258 The Act was subsequently enacted to limit the ability
of decision makers to apply the refugee definition only to those that fall within a strict
254
Interim Decision 3404 (BIA 1999)
Asylum and Withholding Definitions 65 Fed.Reg. 76,588 (proposed Dec 7 2000) (to be codified at 8
C.F.R. pt 208)
256
ibid
257
168 ALR 190
258
Hunter, above n 28 at 107
255
and narrow interpretation. It can be inferred that the Minister intended cases such as
Khawar to fall outside the definition.259
Despite opposite aims, both pieces of legislation decrease the likelihood that claims for
refugee status based on female specific experiences will be granted.
The INS Proposal
The INS proposal seeks to amend the nexus requirement of the Convention. It raises the
evidentiary bar so that now claimants must show that a Convention reason was central to
the persecutor’s motivation. Under current law, an applicant need merely demonstrate
that a Convention reason was only one of the persecutor’s motivations for inflicting the
persecution. 260
Oddly, this amendment contradicts with the statement in proposal’s preamble
acknowledging that “under long-standing principles of US refugee law, it is not necessary
for an applicant to show that his or her possession of a protected characteristic was the
sole reason that the persecutor seeks to harm him or her”.261 The higher burden of
‘centrality’ to establish motive is particularly onerous for women fleeing gender specific
harm. Often, a woman’s race, nationality, membership of a particular social group or
political opinion is not the central reason they are persecuted, but is simply one of the
reasons. For example, women who flout repressive social mores suffer persecution
predominately because they are women, and only partly because of their political
opinion.262 Now the latter must be the central reason that they are persecuted.263
259
ibid
Sinha, above n 217 at 1572
261
see above n 227 at 1572 for a discussion of this issue
262
Hunter, above n 28 at 114
263
Condon notes another negative upshot from the imposition of this higher burden on gender based
claims. By inserting the “central motivation” requirement into the “on account of” element, the INS
implies that gender persecution requires additional asylum safeguards, because, in comparison to other
forms of persecution, violence against women is harder to distinguish from ordinary crimes outside the
scope of asylum protection. Thus the INS proposal perpetrates the view that gender violence occurs in the
domestic sphere and lacks societal significance. Condon, above n 217 at 217
260
It has been shown throughout this paper the ridiculous lengths that women fleeing gender
specific experiences and decision makers must go to in order to satisfy the nexus
requirement. In light of this new proposal, even these liberties will be untenable, and it is
likely that a majority of claims will fail.
The INS Proposal also suggests a re-formulation of the social group category by
attempting to reconcile both the immutable characteristic and voluntary association tests.
The proposal recognises that the meaning of “a particular social group has been subject to
conflicting interpretations”,264 and purports to codify the immutable characteristic test
from Acosta.265 This test provides the threshold definition of the particular social group
category. However, the proposal goes on to provide a list of ‘non-determinative’ factors
which may be considered in addition to the immutable characteristic test. These factors
include whether the members are driven by a common interest, whether a voluntary
associational relationship exists among the members and whether the members view
themselves as members of the group.266 In other words, the voluntary association test is
included as an ‘additional consideration’. The rules of statutory construction demand that
a decision maker at least consider these factors in determining whether or not a social
group exists. A decision maker would be obliged to take the voluntary association test
into account – a test which has proven difficult to satisfy in a gender based claim. The
upshot is that the gender sensitive test of immutable characteristics will merely be a
threshold requirement and application of the gender exclusive test of voluntary
association will have legislative force.
The Act
The Act inserts s91R, which relates to the definition of persecution, into the Migration
Act.267 This section states that refugee status can only be granted if:
(a) the Convention reason is the essential and significant reason for the persecution;
264
see above n 255 at 76, 593
see above n 113
266
The other factors listed are whether: the group is recognized to be a societal faction or is otherwise a
recognised segment of the population in the country in question; the society in which the group exists
distinguishes members of the group for different treatment or status compared to other members of society.
See Chisholm, above n81 at 34
267
Migration Act 1958(Cth)
265
(b) the persecution involve serious harm; and
(c) the persecution involves systemic and discriminatory conduct.
The section then goes on to give examples as to what may constitute serious harm.268
The main reason why this section will be detrimental to gender based claims is because,
like the INS Proposal, the burden for satisfying the nexus requirement of the refugee
definition in increased.269 Now, a Convention reason must be the essential and significant
reason for the persecution, whereas previously this was not the law. The same obstacles
are encountered as with the INS proposal. This requirement will be difficult to satisfy for
female claimants, as there are often numerous reasons why they are persecuted as
discussed above.
Another danger inherent in the Act is the definition of persecution. Persecution must now
meet the requirements of ‘serious harm’ and ‘serious discriminatory conduct’. However,
what is considered to meet this standard will inevitably be gendered, due to the provision
of examples of serious harm in the Act which focus on physical hardship and pay no heed
to the types of experiences that only females suffer. The danger with setting forth such
examples is that it may result in other types of harms, like domestic violence and
repressive social mores, being excluded from constituting serious harm.270
268
The examples given are (a) a threat to life or liberty; (b) significant physical harassment; (c) significant
physical mistreatment; (d) significant economic hardship that threatens a person’s capacity to subsist; (e)
denial of access to basic services, where such denial threatens a person’s capacity to subsist; and (f) denial
of the capacity to earn a livelihood, where such denial threatens the persons capacity to subsist
269
Stephanie Cauchi Fleeting Refuge: Women, Domestic Violence and Refugee Status in The Minister for
Immigration and Multicultural Affairs v Khawar (2002) 14(1) Current Issues in Criminal Justice 103 at 104
270
ibid at 113
PART IV
9 Why law reform is needed
9.1 Refugee law post Guidelines is not gender sensitive
The aim of the Guidelines was to make refugee law gender sensitive and thus more
amenable to female specific claims. However, as has been shown in the above discussion
of case law decided subsequent to the issue of the Guidelines, this aim has been thwarted.
Refugee law still excludes a lot of women from its umbrella of protection.
The main reason that the Guidelines have been ineffective is because they are non
binding and are merely administrative directions. The task of making the law gender
sensitive has been left to the judiciary and is dependant on judicial activism when
interpreting and applying refugee law. However, it has been shown throughout the course
of this paper, such reliance is ill-founded. The judiciary, in all jurisdictions, has
demonstrated a profound inability to handle this burden. As soon as a liberal definition of
the Refugee Convention is offered, another conservative and narrow interpretation takes
its place. As a result, the cases offer conflicting precedents that have resulted in a
confused and ad hoc law.
Asylum law must be reformed to enable it to serve its proper purpose – that is to provide
surrogate international protection when there is a fundamental breakdown in state
protection resulting in human rights violations.271
9.2 Legislation in the US and Australia
By respectively proposing and enacting the requirement of centrality in the nexus
component of the Convention, any gender sensitive advancements made in the refugee
law of both jurisdictions has been jettisoned.
The demand that a Convention reason be the central motivation for the persecution feared
is a virtually impossible burden for female claimants to satisfy as explained above. A
271
McCabe, above n 9 at 434
majority of claims will be relegated once more to the private sphere as a nexus will not be
found. This privatisation of women’s claims was one of the main critiques of asylum law
prior to the enactment of the Guidelines. Now, in 2003, the law in both the US and
Australia appears to be in exactly the same position given these recent changes.
Reform of a legislative nature in these two jurisdictions is now the only way forward
because case law cannot override legislation.
9.3 The pervasive ‘cultural hook’
If there is no law reform the concept of the ‘cultural hook’, on which so many decision
makers base their findings, will perpetuate leaving many deserving applicants without
protection.
Sinha has identified a systematic problem of granting asylum to women: namely the fact
that the determination of a claim turns on whether “the gender related harm can be linked
to practices attributable to non-western foreign cultures”.272 Decision makers are
reluctant in cases where the alleged harm appears similar to experiences suffered by
women in their own countries, to grant refugee status. To do so would be to strike at a
fundamental tenant of western identity. Western countries consider themselves ‘refugee –
acceptors’ who would never inflict harm on women of the kind that is suffered in refugee
– producing countries. The western world considers itself more civilized that that. As
such, when the harm too closely resembles a type pervasive in a western country, the
claimant will typically not be given refuge status. To grant asylum would be akin to
admitting that the western world too could produce refugee women.
The most obvious example is domestic violence which is suffered by women throughout
the world including Canada, Australia and the US. It is evident from the above discussion
of case law that domestic violence victims find it particularly challenging to convince a
decision maker to grant them refugee status. Sinha argues that these difficulties are
encountered because domestic violence is pervasive in the western world. Unless a
272
Sinha, above n 217 at 1568
decision maker can find a ‘cultural hook’, such as a foreign religion or cultural custom on
which to base their decision, the claim will be denied.
This is demonstrated by analysing the conflicting decisions of Matter of R-A273 and In re
S-A.274 In both cases the claimant was a victim of domestic violence, but in the former
case asylum was denied while in the latter it was granted. The different outcomes may be
attributable to the fact that the claim in In re S-A was based upon religious persecution.
In In re S-A the applicant claimed she was severely abused by her father, because her
liberal Muslim views did not accord with his “orthodox Muslim beliefs, particularly
pertaining to the status of women”. This suggests that the conduct may have been more
about gender subordination as opposed to religious differences, but nevertheless, it was
found that the harm suffered was persecutory and motivated by the claimant’s religion. In
Matter of R-A, while finding that the decade of extreme physical violence and sexual
abuse suffered by the claimant amounted to persecution, the BIA held that she was not
abused on account of one of the enumerated grounds, and thus the nexus requirement was
not fulfilled.
Further evidence in In re S-A mitigates against a finding that the father was motivated by
the claimant’s religious beliefs, as a witness’s testimony concerning the father’s conduct
observed that he would beat the applicant “for no excuse”. Nevertheless, because the BIA
had the ‘cultural hook’ of non-western religious orthodoxy, it found it could grant the
claim. The Board, in complete contradiction to previous case law, even went so far as to
say “an asylum applicant is not obliged to show conclusively why the persecution has
occurred or may occur”. Instead it substituted its own motivation – religion.
In Matter of R-A there was no hook. It was a simple case of domestic violence inflicted
on the applicant because she was a woman. She was denied asylum because the BIA
could not pin the blame on what it perceived as a non-western collective pathology like
273
274
see above n 216
-[Binder 2] Int.Dec (Hein) 3433 (B.I.A. June 27 2000)
fundamentalist Islam. The court in In re S-A concluded as much: “we….find that because
of the religious element in this case, the domestic abuse suffered by the respondent is
different to that described in Matter of R-A”.275
Thus, it seems as if “the successful asylum seeker must cast herself as a cultural ‘Other’,
that is, as someone fleeing from a more primitive culture”.276 However, surely if the
purpose of refugee law is to be fulfilled, that is to provide a safe haven for all individuals
with a legitimate need, its application “should not have to depend on whether the
persecution [the claimant] suffered is foreign enough”.277 In order to change this and
allow refugee law to live up to its humanitarian intent, reform must occur.
10 How to reform the law
Generally speaking, women are not raped, beaten, subjected to repressive social norms,
or FGM because of their political opinion, race, nationality, membership of a social group
or religion. Women are subjected to these harms because they are women: “What makes
them a target is primarily, if not exclusively, their sex”.278 It is time the law recognised
the reality of the situation of women.
I propose an effective way to do this would be to amend the domestic legislation in all
three jurisdictions to include ‘gender’ as a sixth category in the definition of refugee.
Such an amendment will be beneficial in several ways.
Firstly, it will minimise the manipulation and contortion of the law that currently that
takes place with respect to the nexus requirement. Presently female asylum seekers and
their lawyers are limited to merely trying to fit or creatively squeeze claims into the
existing categories because refugee law does not recognise that women are persecuted
275
ibid at 12
Sinha, above n 217 at 1570
277
ibid
278
Making the Refugee Convention Gender Sensitive: The Canadian Guidelines (1996) 45 International
and Comparative Law Quarterly 702 at 702
276
because they are women.279 If ‘gender’ was to be included as an enumerated head, the
actuality of women’s experiences could be portrayed.
Secondly, such a move would bring refugee law in line with its original humanitarian
intent. As the Refugee Convention and Protocol originally intended to provide a haven
for all persecuted refugees, it seems only logical that the current law should provide such
protection.280 Adding gender as an enumerated head will ensure this intention is realised.
Thirdly, it will provide the most practical benefit to an individual refugee. Some
academics argue that the Refugee Convention should be amended to include “gender” as
an enumerated ground.281 However I submit that such a move would take too long to
achieve and be useless for practical purposes. All the states who are party to the
Convention would have to agree to the amendment, and, even then they are not bound to
implement the change. Thus, the countries in which individual refugees seek asylum may
not have included gender as a sixth category, rendering their domestic law in its current
gender insensitive position. By contrast, amending domestic law is quick. It is also the
most rational move considering it is the law under which an individual applicant is
claiming refugee status. It is much more relevant that it be gender sensitive.
Fourthly, it is a by far preferable solution than dedicating ‘women’ or ‘gender’ as a
particular social group.282 Such a move marginalises gender specific experiences by
suggesting that they are not as important as claims based on political opinion, race,
religion or nationality.283 The situation of women would be validated as opposed to
sidelined if ‘gender’ were to be added as an enumerated head in the refugee definition.
279
Cauchi, above n 269 at 104
Kandt, above n 90 at 141
281
Many feminist groups, such as the International Federation of Iranian Refugees and Immigration
Councils (Canada), are pushing to petition the UN to have “gender” added as a sixth category to the
Refugee Convention; Schneck, above n 87
282
This method of reform has been suggested by numerous academics. See, eg: Sidun, above n 89;
Connors, above n 43; Neal, above n 36
283
Kandt, above n 90 at 141
280
It is noted that adding ‘gender’ as an enumerated head is not the perfect solution.
Deborah Anker has argued that such a move would be futile because, among other things,
it does not address the problems inherent with the definition of persecution. My
suggestion is only relevant when the claim turns on an analysis of the nexus requirement.
However, I consider that this element of the refugee definition provides the fundamental
stumbling block for a majority of gender specific claims. If this impediment were to be
removed there would be a considerable increase in the number of applications granted
and an overall improvement in the gender sensitivity of refugee law.
In the last decade 100 million women have perished as a result of gender – based
persecution. Each year, hundreds of thousands more join these victims – condemned to
death on account of their gender. The original humanitarian intent of refugee law
demands that these individuals be given safe haven. Legislative reform of the nature
suggested is one way of honouring this objective.
REFERENCES
PRIMARY SOURCES

List of Cases
United States
Matter of Pierre (1975) 15 I&N Dec. 461 (BIA 1975)
INS v Stevic 467 U.S. 407 (1984)
Cardoza-Fonseca v INS 767 F.2d 1448, 1452 (9th Cir.1985)
Campos – Guardado v INS 809 F.2d 285 (5th Cir. 1987)
In Matter of Acosta 19 I.& N. Dec 221 (BIA 1985)
Sanchez-Trujilio v INS 801.F2d. 1571 (9th Circuit 1987)
Gomez v INS (1991) 947 F2d.660 (2nd cir 1991)
Estrada-Posadas v INS 924 F.2d 916, 919 (9th Cir 1991)
Klawitter v INS (1992) 970 F.2d 149 (6th Circuit.1992)
Fatin v INS (1993) 12 F.3d 1233 (3rd Circuit 1993)
Safie v INS 25 F.3d 636 (8th Cir.1994)
Matter of M-K A72-374-558 (1995)
Matter of M K, (A# redacted) (Arlington, VA, Immigration Court, Aug. 9, 1995)
Fisher v INS (1996) 79 F.3d 955 (9th Circuit 1996)
Matter of U S, (A# redacted) (Anchorage, AK, Immigration Court, Dec. 19, 1996)
Lopez Galarzo v INS (1996) 99 F.3d 954 (9th Cir, 1996)
Matter of N Q (1997) (A# redacted) (New York, NY, Immigration Court, Oct. 17, 1997
Angoucheva v INS 106 F.3d 781 (7th Cir. 1997)
Matter of Anon, (A# redacted) (Buffalo, NY, Immigration Court, Nov. 25, 1998)
Matter of M B (BIA, July 10, 1998, unpublished)
Matter of A A, (A# redacted) (York, PA, Immigration Court, Mar. 10, 1998)
Matter of S C, (A# redacted) (Boston, MA, Immigration Court, Feb. 19, 1998)
Matter of R-A Int.Dec. 3404 (BIA June 11 1999)
Abankwah v INS (1999)185 F.3d at 21 (2nd Circuit 1999)
Matter of Anon, (A# redacted) (Buffalo, NY, Immigration Court, Dec. 14, 1999)
Matter of A S, (A# redacted) (Philadelphia, PA, Immigration Court, Aug. 19, 1999)
Matter of O O, (A# redacted) (New York, NY, Immigration Court, May 20, 1999)
Oyeyemi v. INS, 187 F.3d 642 (Table) (8th Cir. 1999), 1999 WL 297065
Shoafera v INS 288 F.3d 1070 (9th Cir 2000)
Matter of Anon (BIA, Mar. 14, 2000, unpublished)
Matter of Anon, (A# redacted) (New York, NY, Immigration Court, Oct. 24, 2001)
Matter of Anon, (A# redacted) (Elizabeth, NJ, Immigration Court, Oct. 16, 2001)
Aguirre – Cervantes v INS 242 F3d. 169, 1176 (9th cir.2001), reh’g granted en banc 270 F3d.704,
vacated,273 F.3d 1220 (2001)
Matter of Anon, (A# redacted) (New York, NY, Immigration Court, Feb. 28, 2002)
Canada
In Re Incirciyan No M87-151X and M8701248 (10 August 1987)
Adjei v Canada (1989) F.C.680
CRDD U91-04008 (24 Dec 1991)
Mayers and Marcel v MEI (1992) 97 D.L.R. (4th) 729 (F.C.A.D.)
Ministry of Employment and Immigration v Marcel Myers A- 544-92 (2 Nov 1992)
CRDD U92-06668 (19 Feb 1993)
Canada (Attorney-General) v Ward (1993) 2 SCR 689
Cheung v Canada (1993) 2 FC 314
Namitbar v Canada (1994) F.C.42
Litvinov v Canada (1994) F.T.R. 60
Annan v Canada(1995) 2F.C. 25 (T.D.)
V95-00374 (1996)
CRDD T93-12197 10 May 1997
A96-00453 (1997)
U93-08214 (1997)
T97-03141(1998)
In re D.J.P., (1999) C.R.D.D. N.155
Mayeke v Canada (M.C.I.) (1999) File No. Imm 2496-98
In re F.Z.A. (2000) C.R.D.D. No.139
Ahamadon v Canada (M.C.I) (2000) File No. IMM-1257-99
Newton v Canada (2000) File No. IMM-1159-99
In re K.B.A. (2001]) C.R.D.D. No.85
Sawadogo v Canada (2001) FCT 497
Osman v. Canada (M.C.I.), 2001 FCT 158
TA0-00783 (2001)
Australia
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Morato v Minister for Immigration, Local Government and Ethnic Affairs(1992) 39 FCR 401
Lek Kim Sroun v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455
RRT Reference: BN 93OO446 (25 March 1994)
RRT Reference: N94/3000 (20 May 1994)
RRT Decision N93/00656 (3 August 1994)
MIEA v Che Guang Xiang (unreported, Full Federal Court, 12 August 1994)
Applicant A v MIEA (1997) 142 ALR 331
RRT Reference: V97/05699 (July 21, 1997)
Minister for Immigration and Multicultural Affairs v Nedge FCA 783 (unreported Weinberg J, 11 June
1999)
Milosevska v MIMA [1999] FCA 830
Minister for Multicultural Affairs v Khawar (2000) FCA 130 (Hill, Mathews and Lindgren JJ)
RRT Reference: N98/25465 (12 January 2001)
RRT Reference: N01/36684 (20 April 2001)
Minster for Immigration & Multicultral Affairs v Khawar (2002) 76 ALJR 667
RRT Reference: N00/35819 (27 June 2002)

Legislation
United States
Refugee Act of 1980
Immigration & Naturalization Service, Office of International Affairs
Asylum and Withholding Definitions 65 Fed.Reg 76, 588 at 76, 591 (proposed 7 Dec 2000)(to be codified at
8 C.F.R.pt.208) (available at http://www.uchastings.edu/cgrs/law/guidelines.html) [The ‘INS Proposal’]
Canada
Immigration and Protection Act (2001)
Australia
Migration Act 1958 (Cth)
Migration Legislation Amendment Act (No 6) 2001

Gender Guidelines
Australia
Department of Immigration & Multicultural & Indigenous Affairs
Refuge and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers (1996)
(available at http://www.uchastings.edu/cgrs/law/guidelines.html)
United States
Memorandum from Physllis Coven, Office of International Affairs to All INS Asylum Officer and
Headquarters Coordinators US Immigration and Nationalization Service: Considerations for Asylum
Officers Adjudicating Asylum Claims from Women (May 26, 1995) (1995) 7 Int’L J.Refugee L. 700
(available at http://www.uchastings.edu/cgrs/law/guidelines.html)
Canada
Immigration and Refugee Board
Guidelines for Women Refugee Claimants fearing Gender-Related Persecution (1993, updated 1996)
(available at http://www.uchastings.edu/cgrs/law/guidelines.html)

UN Documents
Protocol Relating to the Status of Refugees, Jan 31, 1967 19 U.S.T. 6233, 606 U.N.T.S. 267.
United Nationals Declaration on the Elimination of Violence against Women UN Doc. A/48/49 (1993)
United Nations Convention relating to the Status of Refugees 1951 opened for signature July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 150

UNHCR Documents
Guidelines on International Protection: Gender-Related Persecution UN Doc. HCR/GIP/02/01, 7 May
2002
Guidelines on International Protection: Membership in Particular Social Group UN Doc.
HCR/GIP/02/02, 7 May 2002
Guidelines on the Protection of Refugee Women UN Doc: ES/SCP/61 (1991)
Handbook on Procedures and Criteria or Determining Refugee Status (Geneva, Sept 1979 re-edited Jan
1992)
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 Books
Burn, J & Reich A The Immigration Kit: A Practical guide to Australia’s Immigration Law (6th ed) The
Federation Press, Sydney, 2001
Hathaway, James The Law of Refugee Status Butterworths, Canada 1991
Raine, Nancy After Silence: Rape and My Journey Back Three Rivers Press, New York, 1998
Spijkerboer,Thomas Gender and Refugee Status Ashgate, England, 2002

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Adams, Laura Beyond Gender: State failure to Protect Domestic Violence Victims as a Basis for Granting
Refugee Status (2002) 24 T.Jefferson L.Rev 239
Anker, Deborah Women Refugees: Forgotten no Longer? (1995) 32 SANDLR 771
Anker, Deborah Refugee Status and Violence against women in the “Domestic sphere”: The non-state
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Anker, Deborah Refugee Law, Gender and the Human Rights Paradigm 15 Harv.Hum.Rts.J.133
Aydelott, Danise Mass Rape During War: Prosecuting Bosnian Rapists under International Law (1993) 7
Emory Int’l L Rev 585
Bacon, Rachael & Booth, Kate The Intersection of Refugee Law and Gender: Private Harm & Public
Responsibility Islam; Ex Parte Shah Examined (2000) 23(3) UNSW Law Journal 135
Bahl, Anjana Home is Where the Brute Lives: Asylum Law and Gender-Based Claims of Persecution
(1997) 4 Cardozo Women’s L.J. 33
Bender, Nicholas Refugee Status (2002) 76 ALJ 430
Cauchi, Stephanie Fleeting Refuge: Women, Domestic Violence and Refugee Status in The Minister for
Immigration and Multicultural Affairs v Khawar (2002) 14(1) Current Issues in Criminal Justice 103
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Sidun, Suzanne An End to the Violence: Justifying Gender as a “Particular Social Group” (2000) 28 Pepp.
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Weisblat, Caryn Gender- Based Persecution: Does United States Law Provide Women Refugees with a
Fair Chance? (1999) 7 Tul.J.Int’l&Comp.L.407

Miscellaneous
Amnesty International
Women in the Front Line: Human Rights Violations Against Women 5 (1990)
Australian Law Reform Commission
Report of the ALRC, Pat IV Section 11: Violence and Women’s Refugee Status (available at
http://www.uchastings.edu/cgrs/law/guidelines.html)
Department of Immigration & Multicultural & Indigenous Affairs
Gender-Related Persecution (Article 1A(2)): An Australian Perspective. A Paper Prepared as a
contribution to the UNHCR’ Expert Roundtable Series 2002
Legal Aid Commission of NSW
Submission 588

Newspaper Articles
Issacs, Arnold The Dark Side of China’s Population Control San Fran Chronicle, July 25 1993, Sunday
Review at A1
Williams, Mary Walsh Battered women as Refugees L.A. Times Feb, 23 1993 at A12
Sontag, Deborah Women Asking U.S. Asylum Expand Definition of Abuse N.Y. Times Sept 9, 1993 at A13
“No plans to accept victims of sexual bias” Toronto Globe & Mail 16 January 1993 at A 6
WEBSITES
www.amnesty.org
www.feminist.org.action/1_action.html
www.legalaid.nsw.gov.au
www.uchastings.edu/cgrs/law
www.unhcr.ch
www.un.org