FLAWED FOUNDATIONS: AN HISTORICAL EVALUATION OF DOMESTIC VIOLENCE CLAIMS IN THE REFUGEE TRIBUNALS.

• Date: 01 August 2021
• Author: Anderson, Adrienne

CONTENTS I Introduction A Background and Purpose B Methodology C Overview II Intimate Partner Violence under the Convention III Australia's Approach to Intimate Partner Violence Cases: The Nexus Enquiry A The Current Approach 1 Overview 2 Problems with the Current Approach 3 Consequences (a) Impact on Claimants (b) Impact on Australian Refugee Law B Early Gender Claims: Jurisprudence 1994-96 IV Historical Account A Event 1: Ministerial Comments, December 1996 B Event 2: Applicant A, 24 February 1997 1 Background 2 The RRT's Perception of Applicant A 3 Understanding Applicant A's Impact (a) Particular Social Group Determination (b) Assessing Nexus (i) The Key Paragraphs (ii) 'Private' Persecution (iii) Individual Basis V The Reconstruction of Intimate Partner Violence Jurisprudence A Revisiting the Events of 1996 and Applicant A B Reassessing Australian Intimate Partner Violence Claims: Future Steps VI Conclusion I INTRODUCTION

A Background and Purpose

It is now undisputed that gender claims are encompassed by the definition of 'refugee' in the Convention Relating to the Status of Refugees ('Convention'). (1) That this was ever in doubt is, in part, owed to the omission of sex/gender from the wording of the Convention, (2) and to the traditional public-private distinction underpinning all areas of law, with matters associated with the 'public' sphere--government, politics, and economics--deemed the appropriate subject of legal regulation, and 'private' sphere matters--associated with women--excluded from purview. (3) In refugee law, commentators from the 1980s onwards have attributed women's struggles to bring their claims within the Convention framework to this ideology. (4) Due to the Convention's requirement that claimants demonstrate a well-founded fear of being persecuted for one of five protected grounds (from which their state is unable or unwilling to protect them), (5) feminist scholars have observed that the construction of men's experiences as the norm, (6) and women's experiences as private, (7) has resulted in harms affecting women not being recognised as persecution or as occurring for a discriminatory Convention reason. (8)

While progress has been made, particularly in the recognition of rape, female genital mutilation ('FGM'), and other gendered harms as persecution, (9) the gap between policy guidance and its implementation, (10) as well as inconsistent outcomes in gender-related refugee claims, continues to be documented. (11) The continued exceptional treatment of these claims, (12) despite decades of 'gender-sensitive' jurisprudence, is attributed to the persistence of the public-private dichotomy.

Claims centring domestic violence as the feared persecution appear to be particularly challenging for adjudicators. Various explanations for the perception of these claims as complex, (13) or atypical, have been suggested, many of which recall public-private concerns: the existence of domestic violence in adjudicators' own societies; (14) relatedly, its 'quotidian' nature by contrast to 'exoticized' gendered harms, like FGM, that are more readily thought to warrant refugee status; (15) and its distance from paradigmatic, state-directed political persecution due to its perpetration by non-state agents in the home, (16) within a personal relationship. (17) Given the global prevalence of domestic violence, (18) potentially large numbers of claims are subject to these perceptions, impacting their resolution.

Developments in international human rights law have had some alleviating effect: it is recognised that states have binding obligations to prevent, investigate and punish violations of human rights including those, like domestic violence, occurring within the family. (19) Within refugee law, this enabled recognition that host states may owe surrogate protection to claimants whose states have failed to fulfil these domestic responsibilities, challenging the traditional public-private divide. (20) Key cases in common law jurisdictions allowed for the possibility of establishing the link between a Convention ground and the persecution feared (known as 'nexus') through either the infliction of harm or the failure of state protection in claims involving non-state agents, such as domestic violence. (21)

While these cases led to better outcomes for women, at least initially, (22) restrictive interpretation of case law in some jurisdictions has resulted in recognition of refugee status only in instances where the state refuses protection on the basis of gender, (23) allowing views that domestic violence occurs for personal or private reasons to proliferate. In Australia, the view prevails that such violence is difficult to bring within the Convention framework where states are merely unable--as opposed to unwilling--to prevent it. (24) A key feature of Australian domestic violence jurisprudence is the perception that the perpetration of violence is personally motivated and therefore lacking nexus to a Convention ground in the absence of discriminatory denials of protection. (25)

Such claims routinely turn upon the application of two of the most legally complicated elements of the refugee definition: nexus and the particular social group ('PSG') ground. (26) However, putting aside the ordinary challenges of legal construction--which arise in other types of claims with lesser impact--this article seeks to demonstrate that domestic violence cases are not inherently complex, (27) or ill-suited, to the refugee framework. It does so through an account of the case law of two tribunals: the former Refugee Review Tribunal ('RRT') and current Administrative Appeals Tribunal ('AAT'), with a particular focus on the assessment of nexus. (28)

The designation of domestic violence as private, personal, and lacking Convention nexus has long been criticised both internationally (29) and domestically, (30) with scholars largely attributing this phenomenon to the lasting influence of the public-private distinction. Yet, as this article argues, in the Australian context this is not a complete explanation for the contemporary determination of domestic violence claims. The reason why the notion that domestic violence is personally motivated has so firm a foothold in this jurisdiction can only be discovered, and addressed, through consideration of the conditions peculiar to Australia which have cultivated it--an explanation that is absent from the literature.

An historical appraisal of tribunal jurisprudence provides local contextualisation, suggesting two relevant factors. First, that despite the established public- private divide, Australian decision-makers have not always considered domestic violence to be 'private' harm: in the mid-1990s, the RRT accepted that domestic violence perpetration is gendered and within Convention scope. Secondly, that this positive trajectory was disrupted by two external events: namely, the public criticism of tribunal members who had found abused women to be refugees by then Minister for Immigration and Multicultural Affairs, Philip Ruddock, and the (mis)interpretation of the High Court's decision in Applicant A v Minister for Immigration and Ethnic Affairs ('Applicant A'), (31) which, while not concerned directly with domestic violence, has profoundly influenced decision-making in this area.

It will be argued that these combined circumstances caused an illegitimate shift, moving the tribunals away from refugee status determination which, in recognising gender inequality as a reason for persecution, had previously begun to put aside arbitrary public-private distinctions, with significant repercussions for claimants.

B Methodology

This article draws on a close reading of every published tribunal decision (32) involving intimate partner violence ('IPV') (33) since the 1993 establishment of the RRT. (34) A search of RRT and AAT decisions using the search terms 'domestic violence', 'domestic abuse, 'family violence' and 'gender-based violence' was carried out. Each decision was checked to determine if it was within scope: those cases involving violence between current and former intimate partners were included in the case sample; (35) those involving other types of family violence, such as violence perpetrated by in-laws or other relatives, were excluded. (36) In order to understand how the concepts of IPV and gender are conceptualised by decision-makers, the analysis considered what Convention ground was used and how nexus assessments were undertaken, including whether nexus was connected to the state or perpetrator and whether decision-makers considered the nature, dynamics, and causes of IPV by reference to local, international or United Nations High Commissioner for Refugees ('UNHCR') gender guidelines; human rights instruments; and other expert evidence. (37)

IPV was selected as the focus because it is the most common form of gender-based violence. (38) Such claims represent a significant portion of the domestic violence case load, and it is here that the relevant issues coalesce most acutely.

Tribunal jurisprudence was selected because it is within the administrative context that specialist merits review takes place. (39) Tribunals implement higher-court guidance day after day, with real impact on claimants' lives, and, given that there is no precedent system, and as the analysis indicates, common issues affect applicants year after year. It is at this level that the gap between international standards and practice is at its widest, (40) and yet these decisions have the least (academic) scrutiny. (41) While leading cases on domestic violence in a range of jurisdictions have been compared, (42) or select key lower-level cases analysed in detail, (43) the only systematic reviews of various levels of appellate decision-making focus on isolated national jurisdictions (and none have considered Australian tribunal jurisprudence in detail). (44)

C Overview

The article is structured as...