Minister for Immigration v Khawar

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow JJ,Kirby J,Callinan J
• Judgment Date: 11 April 2002
• Neutral Citation: [2002] HCA 14,2002-0411 HCA B
• Docket Number: S128/2001
• Court: High Court
• Date: 11 April 2002

[2002] HCA 14

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, and Callinan JJ

S128/2001

Minister for Immigration and Multicultural Affairs

Appellant

and

Naima Khawar & Ors

Respondents

Representation:

N J Williams SC with J D Smith and M N Allars for the appellant (instructed by Australian Government Solicitor)

J Basten QC with S E Pritchard for the respondents (instructed by Coelho & Coelho)

Migration Act 1958 (Cth), s 36(2).

Convention relating to the Status of Refugees, art 1A(2).

Minister for Immigration and Multicultural Affairs v Khawar

Immigration — Refugees — Application for protection visa — Well-founded fear of persecution — Applicant, a citizen of Pakistan, allegedly victim of domestic violence at the hands of her husband and his family — Whether failure by State to provide effective police protection against domestic violence capable of constituting persecution for a Convention reason where the feared violence is perpetrated by non-State agents for non-Convention reasons — Whether Convention requirement that putative refugee be ‘unwilling to avail himself of the protection’ of the country of nationality refers to protection by the State within the country of origin or to diplomatic or consular protection available to citizens who are outside the country of origin — Whether selective or discriminatory failure by State to enforce the criminal law against non-State actors who assault members of a particular social group capable of constituting persecution under the Convention.

Immigration — Refugees — Application for protection visa — Membership of a particular social group — Applicant, a citizen of Pakistan, allegedly victim of domestic violence at the hands of her husband and his family — Whether ‘women in Pakistan’ a particular social group — Whether applicant may fall within a more narrowly defined social group.

Words and phrases — ‘persecution’, ‘particular social group’.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ. This appeal raises two issues concerning the definition of ‘refugee’ incorporated into the Migration Act 1958 (Cth) (‘the Act’) by s 36(2), which deals with the granting of protection visas, and provides that a criterion for a protection visa is that the applicant is a non-citizen ‘to whom … Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.’ 1 The definition appears in Art 1 of the Convention. Article 1A(2) provides that the term ‘refugee’ shall apply to any person who:

‘owing to 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 nationality and is unable or, owing to such fear, is unwilling to avail himself 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 fear, is unwilling to return to it.’

2 The substantive provisions of the Convention appear in a series of Articles which specify various obligations of a contracting state, being ‘the country in which he finds himself’, to a refugee (Art 2). These include obligations as to the juridical status to be accorded to the refugee (Ch II), as to rights of employment (Ch III), as to welfare (Ch IV), and as to rendering diplomatic and other assistance of the kind that might ordinarily be rendered by the country of nationality (Ch V).

3 Article 33(1) of the Convention provides:

‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

4 The issues arise in the context of applications for a protection visa by a married woman, Ms Khawar, a citizen of Pakistan, and her three children. Ms Khawar's case is that she was a victim of serious and prolonged domestic violence on the part of her husband and members of his family, that the police in Pakistan refused to enforce the law against such violence or otherwise offer her protection, and that such refusal is part of systematic discrimination against women which is both tolerated and sanctioned by the state 2. Those allegations

are not admitted to be true; and the allegations as to police inaction, and state policy, in Pakistan have not yet been the subject of findings. This Court is concerned only with legal issues that arise from the nature of the case Ms Khawar seeks to make, and from the way in which her case was dealt with in the Refugee Review Tribunal

5 The first issue is whether the failure of a country of nationality to provide protection against domestic violence to women, in circumstances where the motivation of the perpetrators of the violence is private, can result in persecution of the kind referred to in Art 1A(2) of the Convention.

6 The second issue is whether women (or, for present purposes, women in Pakistan) may constitute a particular social group within the meaning of the Convention.

Facts and proceedings

7 Ms Khawar and her children arrived in Australia in June 1997, and lodged applications for protection visas in September 1997. In February 1998, a delegate of the appellant refused the applications. The respondents sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). In January 1999, the Tribunal affirmed the delegate's decision.

8 There was anonymous information before the Tribunal that Ms Khawar's claim that she was a victim of abuse, and that she had a fear of persecution, was bogus and, by implication, that she and her husband were colluding. The Tribunal did not make findings as to the truth of that information, and dealt with the matter upon the basis that the allegations of abuse were true. Because the Tribunal considered that, even on that basis, the claim to refugee status was fundamentally flawed, for reasons that will appear, it was regarded as unnecessary to make findings on the allegations of fabrication.

9 There are two presently relevant factual issues, or potential issues, as to which the Tribunal received information, but about which it made no findings. The failure to make such findings was related to the legal approach which has given rise to the present appeal.

10 First, Ms Khawar gave evidence of four occasions on which she approached the police, alone or together with a male relative, to complain of the violence from which she was suffering. On each occasion the police response, she said, was one of indifference and refusal to help. The Tribunal did not decide whether to accept that evidence.

11 Secondly, Ms Khawar's solicitor filed a submission that included, under the heading ‘Country Context’, material concerning ‘the position of women in Pakistani society and culture generally.’ That included extracts from reports of the United States State Department, the Canadian Immigration and Refugee Board, Amnesty International, and the Australian Department of Foreign Affairs and Trade. Much of the information was to the same effect as the facts that were found, and were ultimately before the House of Lords, in R v Immigration Appeal Tribunal, Ex parte Shah 3. In that case, Lord Steyn said 4:

‘Generalisations about the position of women in particular countries are out of place in regard to issues of refugee status. Everything depends on the evidence and findings of fact in the particular case. On the findings of fact and unchallenged evidence in the present case, the position of women in Pakistan is as follows. Notwithstanding a constitutional guarantee against discrimination on the grounds of sex a woman's place in society in Pakistan is low. Domestic abuse of women and violence towards women is prevalent in Pakistan. That is also true of many other countries and by itself it does not give rise to a claim to refugee status. The distinctive feature of this case is that in Pakistan women are unprotected by the state: discrimination against women in Pakistan is partly tolerated by the state and partly sanctioned by the state.’

12 Again, the Tribunal made no findings as to whether that information was true, because it considered that, even if it were true, the claim to refugee status must fail.

13 The Tribunal's decision was given before the House of Lords decided Ex parte Shah. The essence of the Tribunal's reasoning was that, even if Ms Khawar's claims as to her treatment by her husband and his family were true, those harming her were not motivated by her membership of any particular social group, but by purely personal considerations related to the circumstances of her marriage, the fact that she brought no dowry to the family, and their dislike of her as an individual. The reasoning proceeded on the assumption that the alleged persecution, if any, consisted solely of the conduct towards Ms Khawar of her husband and his relatives. That conduct was not for reasons of race, religion, nationality, political opinion, or membership of a particular social group, even if women constituted such a group. It was for personal reasons. On that approach, the attitude of the Pakistani police, or of the Pakistani state, was incapable of turning the inflicting of harm for reasons having nothing to do with any of the grounds set out in Art 1A(2) into persecution for one of the reasons stated.

14 There was an appeal to the Federal Court of Australia, which came before Branson J, who concluded that the Tribunal had erred in law in its interpretation

of the Convention definition of refugee and in its failure to make findings on the two issues of fact earlier mentioned 5. The matter was referred back to the Tribunal for further consideration according to law. The Minister appealed to the Full Court...