Minister For Immigration & Multicultural Affairs v Khawar

FEDERAL COURT OF AUSTRALIA

Minister For Immigration & Multicultural Affairs v Khawar [2000] FCA 1130

N 1379 of 1999

Hill, Mathews and Lindgren JJ

23 August 2000

Sydney

MIGRATION - Refugee - Pakistani woman having a well-founded fear of violence from her husband and members of his family because of personal, family considerations - repeatedly seeking but failing to receive police protection - whether she feared "persecution" "for reasons of" "membership of a particular social group" for purposes of definition of "refugee" in Article 1A(2) of the Convention Relating to the Status of Refugees - relevance of issue of "hate or enmity" or other "attitude" of state as reason for failure to provide protection - whether Tribunal erred in law in thinking further inquiry otiose in view of fact husband and his family motivated by personal, family considerations.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 considered

Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 applied

Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 discussed

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 referred to

Cheng v Canada [1993] 2 FC 314 referred to

Chan v Canada [1993] 3 FC 675 referred to

Attorney-General (Canada) v Ward (1993) 103 DLR (4th) 1 discussed

Re Mayers and Minister of Employment and Immigration (1992) 97 DLR (4th) 729 discussed

Sanchez-Trujillo v INS 801 F 2d 1571 (9th Cir.1986) discussed

Fatin v Immigration & Nationalization Service 12 F3d 1233 (3rd Cir. 1993) considered

Lwin v Immigration & Nationalization Service 144 F 3d 505 (7th Cir 1998) discussed

Sharif v Immigration & Nationalization Service 87 F 3d 932 (7th Cir 1996) referred to

Gomex v Immigration & Nationalization Service 947 F 2d 660 (2d Cir. 1991) referred to

Islam v Secretary of State for the Home Department [1999] 2 AC 629 followed

Basa v Minister for Immigration and Multicultural Affairs [1998] FCA 830 distinguished

Minister for Immigration and Multicultural Affairs v Ndeje [1999] FCA 783

Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 cited

Horvath v Secretary of State for the Home Department, unreported, House of Lords, 6 July 2000 discussed

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the respondents' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HILL J:

1    The question before the Court is whether, in a country where there is discrimination against women so that the police are unwilling or not interested in assisting a married woman who has been beaten by her alcoholically abusive husband, a woman who fears being beaten by such a husband and seeks asylum in this country can be found to be a "refugee" in accordance with the definition of that expression in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (compendiously referred to herein, unless the context otherwise requires, as "the Convention").

2    The facts as found by the Refugee Review Tribunal and the decision of that tribunal and the decision appealed against are all set out in the judgment of Lindgren J which I have had the privilege of reading in advance. I do not repeat them.

The background to the Convention

3    Although it might be said that there have always been refugees, it was not until the 1951 Convention relating to the Status of Refugees that any general attempt was made by international consensus to provide international protection for a person who was a refugee and for that purpose to define who a refugee was. As the judgment of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 277-279 points out there had been a number of prior treaties dealing with particular refugee situations. The Convention and the events which led up to it were, as Hathaway in his The Law of Refugee Status Butterworths 1991 notes, a compromise between the reality of a seemingly unstoppable flow of involuntary migration across European borders and the increasing attempts of nation states to restrict immigration. That is not to say that the meaning of the Convention today must be confined to the problems that presented themselves to the international community in the early 1950's (cf Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 568 per Kirby J) and it is clear enough that there has been a widening over the years of the persons who are genuinely in need of international protection. Nevertheless, the tension between the humanitarian purpose of international intervention to protect those in need of assistance and the legitimate domestic desire of states to limit migration must, to some extent, operate as a restriction on the ability of Courts to widen unduly the scope of the definition. Particularly, there is a danger of extrapolating, from the fact of ill-treatment or discrimination and the sympathy or indeed indignation which such ill-treatment or discrimination engenders in those who would wish to promote a civil society, a conclusion that in international law the person who is ill-treated or discriminated against is, just for that reason, a refugee.

4    Article 1A(2) of the Convention defines "refugee" as including 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 [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country..."

5    It will be noted that the definition contains, so far as is applicable to the present case, three elements all of which need be satisfied before a claimant will be entitled to be considered a refugee. These are, first, the well-founded fear of persecution, second membership of a "particular social group" and, finally, the connection between the two required by the words "for reasons of". It will be necessary to consider in this case the meaning of each of these three elements.

6    An important starting point in exploring the operation of the definition in a case where the claimed persecution is said to arise by reason of membership of a social group, is the decision of this Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 approved by the High Court, inter alia, in Chen. In that case Burchett J, with whom O'Loughlin and RD Nicholson JJ agreed, pointed to the "unity of concept" contained in the Convention definition, at least where the claim arises by virtue of membership of a social group. There was, his Honour wrote, a "common thread", which linked the three concepts of the definition, namely, persecution, "for reasons of" and "membership of a particular social group". That common thread was what his Honour referred to as a:

"motivation which is implicit in the very idea of persecution, is expressed in the phrase `for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group."

7    In the examples which his Honour thereafter gave, namely the persecution during the French Reign of Terror and the atrocities of the Pol Pot regime in Cambodia, the persecution in each case was not for what those persecuted may have done as individuals, but rather, it was the whole class which, in each case, was attacked. And this could be so, notwithstanding that some members of the class might have been able to avoid the persecution by hiding their background or because they were given assistance to do so through money or influence.

Persecution

8    Persecution involves, in a general sense, an element of harm which is not insignificant. It is not necessary in the present case to explore the outer boundaries of persecution or to consider in detail the discussion of the concept in the various judgments of Justices of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A, Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 and more recently in the judgment of Kirby J in Chen at 567-8. But it is important to construe the word by reference to the context in which it appears. Ill-treatment, even oppressive treatment, as such may not necessarily constitute persecution. In Applicant A, Gummow J adopted the formulation of Burchett J in Ram, namely:

"Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution."

The emphasis in this formulation upon motivation or attitude has to be read subject to the later decision of the High Court in Chen.

9    As the definition of the word in the Australian Concise Oxford Dictionary reveals (a definition referred to by Kirby J in the passage cited), the connotation of the word is usually one associated with the present context, that is to say, the hostility or ill-treatment afforded is especially attributed to political or religious beliefs. One might add to this the words "or attributed to the membership of the social group of which the victim of the persecution is a member".

10  Mrs Khawar has undoubtedly been ill-treated. The harm which the Tribunal found to have been perpetrated against her by her husband was horrendous by any standard. Except so far as the context requires that the harm inflicted arise by reason of membership of a particular social group there could be little doubt that the harm inflicted upon her could aptly be described as persecution. A different question arises if it is suggested that the persecution she suffered was not, as such, the ill-treatment from her husband, but the inactivity or inability of the police to prevent a repetition of the conduct. It would, in my mind, be an incorrect use of the word "persecution" to apply it to a failure or lack of interest by the police to come to the aid of a person who has been beaten at least where the law provides, if enforced, adequate protection and there is no government policy that police ignore calls for help. There is, and it is not a matter of which we can be proud, a lack of enthusiasm in the authorities in Australia to come to the aid of women who are victims of domestic violence, but it would not be suggested that the State is, or for that matter the police are, persecuting those women in Australia. Persecution involves the doing of a deliberate act, rather than inaction. The decision of the High Court in Chen might, at first blush, suggest otherwise. There, as will shortly be noted, the persecution held to exist consisted of the denial by the State of access to food, education and health beyond a basic level. Denial of basic human needs is, however, positive action, not inaction. State complicity in the ill-treatment may likewise be distinguished from mere inertia. It is important not to confuse the question whether what the State does itself constitutes persecution with the distinct question of whether the claimant is unable or unwilling to avail herself of State protection. Inertia by the State may mean that the State is unable or unwilling to protect the class of persons claiming to fear persecution, including the claimant. It seems to be relatively clear from the language of the Convention that for the persecution to be within the Convention it is not necessary that it emanate from the State. Where, however, the persecution does not emanate from the State, and provided that the necessary link exists between the persecution and political or religious opinion, membership of a particular social group etc, it may fall within the Convention where the State is unable or unwilling to protect its citizens from the persecution. So, for instance, those who oppose the Tamil Tigers may be persecuted by that group in circumstances where the State is unable or unwilling to prevent that. Yet those persecuted may seek the benefit of the Convention.

11  The Convention is only attracted where the harm inflicted is not, as such, an isolated act of harm to the person, a harmful act done on an individual basis, but something more is required. That something more is to be found in the link which is required to exist between the harm inflicted and the Convention ground, in the present context membership of the social group. It is convenient first, therefore, to consider the concept of membership of a particular social group before discussing the question of the necessary link that has to be found.

A particular social group

12      Uninstructed by authority, there would seem little difficulty in interpreting the phrase "particular social group" as it appears in the Convention. Both the word "particular" and the word "social" suggest that the group must be one that is identifiable in the society. Clearly society as a whole would not be a particular social group. Given the definition of "refugee" in the Convention there would seem to be scope for the view that the expression should be read ejusdem generis with the categories which have gone before - ie race, religion or nationality. That is to say it should be possible to point to some connecting thread among members of the social group (not being race, religion or nationality) that serves to identify that group. Given the significance which protection against discrimination has in the Convention one might expect that that common thread could be found in the circumstances upon which that discrimination is based. This is particularly so because there has to be a link between the persecution, on the one hand, and membership of the particular social group, on the other. However, the meaning of the expression is not without authority, although it would be idle to pretend that that authority is consistent on a world-wide basis.

13  The "traveaux preparatoire" to the Convention yield little assistance in understanding what was intended to be comprehended in the concept of "particular social group". Goodwin-Gill notes in his work The Refugee in International Law that the words "membership of a particular social group" were introduced at the instance of the Swedish delegate to the 1951 Convention who simply stated that examples of such cases existed. None were stated by the delegate, perhaps because they were thought to be well known. Obvious examples can be imagined, for instance the petty bourgeoisie were regarded as class traitors in Stalinist Russia. Intellectuals have been the subject of persecution by many regimes, including Communist China during the Cultural Revolution and by the Pol Pot regime in Cambodia. McHugh J in Applicant A at 267 gives as an example the kulaks in Communist Russia as discussed by Judge Posner in Bastanipour v Immigration and Naturalization Service (1992) 980 F 2d 1129 at 1132. These are but examples of cases where persecution arose, not because of any particular beliefs that members of the class had, but by reason of their characteristic of being a member of a recognisable class. Hathaway at 159 suggests that, whatever the meaning of the phrase, the framers of the Convention did not intend that the addition of the phrase "particular social group" should serve as a means of addressing all future injustices.

14  The leading case in Australia dealing with the phrase is Applicant A. There, the applicants claimed to fear sterilisation and abortion (the feared persecution) because of a potential infringement of the one child policy of the People's Republic of China. They claimed to be a member of a particular social group and that their fear of persecution arose by reason of their membership of that particular social group. The Tribunal allowed the application and the Minister's application for review was dismissed by Sackville J. On appeal a full Court (Beaumont, Hill and Heerey JJ) allowed the Minister's appeal. By majority (Dawson, McHugh and Gummow JJ, Brennan CJ and Kirby J dissenting), the High Court dismissed the applicants' appeal.

15  The leading judgment of the majority was that of McHugh J, although each of Dawson and Gummow JJ gave separate reasons. It may be noted that the same issue had arisen in Canada and that courts differently constituted had arrived at different results (cf Cheng v Canada [1993] 2 FCP 314 and Chan v Canada [1993] 3 FC 675, cited by McHugh J in Applicant A at 263. His Honour's judgment may be summarised, so far as is presently relevant, in the following propositions:

1.   The meaning of the words "membership of a particular social group" must be construed in the light of the definition of "refugee" taken as a whole.

2.   The more widely the particular social group is defined, the harder it will be to establish that the persecution is by reason of membership of that social group. The less widely the social group is defined, the harder it will be to establish that there is a social group.

3.   The primary purpose of the Convention is the protection, relevantly, of those social groups who are singled out and persecuted "by or with the tacit acceptance of the government of the country from which they have fled, or to which they are unable or, unwilling to return". (emphasis added) (at 257-8).

4.   It would not matter that the person claiming to be a refugee is the only member of the group subjected to discriminatory conduct, so long as the persecution inflicted is so inflicted for a Convention reason.

5.   The concept of persecution has no place in defining the term "a particular social group". The persecution feared can not be the "defining characteristic" of the group in order for it to qualify as a particular social group. The group must "exist independently of, and not be defined by, the persecution."

6.            However, the actions of the persecutors may serve to identify or even cause the creation of a particular social group. This his Honour illustrated by the case of persecution of left-handed people by the State. The persecution would identify the group, but the group itself would exist by virtue of the attribute of left-handedness not the persecution.

16  His Honour, after giving this example, then continued at 264:

"The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in the `particular social group' category is the notion of `membership' expressly mentioned. The use of that term in conjunction with `particular social group' connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group." (original emphasis)

17  From his Honour's judgment it would seem that for there to exist a particular social group within the Convention there must be a reasonably large group of individuals who are perceived by society as being linked or unified by some common characteristic, attribute, activity, belief, interest or goal not being persecution itself. Parents of one child were not a relevant social group, nor were parents in the reproductive age group, or parents with only one child who did not accept the limitations placed upon them, for the appellants did not have a well-founded fear of persecution by reason of membership of these groups. Their fear arose because of their refusal to abide by the one child policy.

18  Dawson J at 245 referred with approval to a comment made by the full Court of this Court that care had to be taken not to conclude from the fact that acts of persecution are abhorrent that those who are the targets of the persecution are members of a particular social group. What was necessary in his Honour's view was to determine whether a circumstance or circumstances operated to unite people so that they were an identifiable social group apart from the fact that they faced persecution.

19  Gummow J referred to cases in Canada and the United States where differing opinions had been given as to he meaning of the phrase "owing to a well-founded fear of being persecuted for reasons of ... membership of a particular social group". I shall refer to some of these cases later, particularly the decision of the Supreme Court of Canada in Attorney-General (Canada) v Ward (1993) 103 DLR (4th) 1. His Honour then pointed to the danger in approaching the Convention as being designed "on a broad front, to advance humanitarian concerns". His Honour's warning to this effect seems, at least in part, directed at the view taken by both Brennan CJ and Kirby J in their dissenting judgments.

20  In his Honour's view, the phrase "for reasons of" confined the notion of fear of being persecuted, identifying the motivation for the infliction of persecution and the objectives sought to be attained by it. Not every broadly defined segment of society would be a particular social group. Rather his Honour adopted the view of Burchett J in Ram to which reference has already been made. The disparate group of people who were at risk under the one child policy were not a particular social group within the Convention.

21  The subsequent decision of the High Court in Chen can be seen as modifying, at least in one respect, what was said in Applicant A. In that case the applicant, a child born in contravention of the one child policy of the People's Republic of China claimed a well-founded fear of persecution by reason of membership of a particular social group, referred to in the judgment as "black children", that is to say, children born outside the parameters of the one child policy and born of an unauthorised marriage. The Tribunal had found that such children were denied access to food, education and health care beyond a very basic level and faced discrimination, prejudice and ostracism. The Tribunal denied refugee status to the applicant because it was of the view that the adverse treatment would arise, not because of the direct action of the authorities, but because the parents, lacking financial resources, would be unable to avoid the consequences of the penalties imposed by the authorities. French J at first instance allowed the child's appeal, holding that it was not necessary that the persecution be motivated by enmity or malignity. Rather it was sufficient if it was motivated by the possession of the attributes of the social group. On appeal to the full Court of the Federal Court, O'Loughlin and Carr JJ were of the view that the adverse treatment likely to be afforded the child was not by reason of the membership of the social group, "black children", but rather a result of the parents' conduct in contravening the Chinese laws. The full Court also held that "black children" could not constitute in law a particular social group. RD Nicholson J would have remitted the matter to the Tribunal to determine whether the child was a member of such a group, ie whether such a group existed as a matter of fact.

22  The primary issue in the appeal to the High Court was whether enmity or malignity was a prerequisite to finding that the claimed persecution came within the Convention. However, it was also argued that the claimed social group existed only because of and was delineated by the persecution. It may be noted that Gummow J was the only Justice common both to the Court which had decided Applicant A and the Court which decided Chen.

23  In a joint judgment, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ reversed the decision of the Federal Court. The Court distinguished the case before it from that arising in Applicant A because in Chen the group constituted by children born in contravention of the one child policy was a group which existed independently of and which was defined other than by reference to the discriminatory treatment or persecution which they feared. The distinction is made clear in the following extract from the joint judgment at 559:

"The circumstance that `black children' receive adverse treatment in China is descriptive of their situation and, as McHugh J pointed out in Applicant A, that may facilitate their recognition as a social group for the purposes of the Convention but it does not define them."

24  The Court had no difficulty in finding in the circumstances that there was persecution and that the persecution arose by reason of the child's membership of the social group of "black children". The Court said at 561:

"Once it is accepted that `black children' are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that that treatment is for a reason other than his being a `black child'. As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute. However, it has not been suggested that that is the position."

25  The Court also rejected the need for a finding of enmity or malignity. So, the fact that the treatment the child was likely to receive was not motivated by enmity or malignity did not operate to disentitle him to be considered a refugee. The Court remitted the matter to the Tribunal with a direction that the child's application be dealt with on the basis that he was entitled to refugee status.

26  In my view, it does not follow from the fact that the Court was of the view that it was not necessary that the treatment which the child in Chen was likely to receive was not motivated by enmity or malignity, that motivation is an unnecessary element in the Convention definition. Gummow J, who was a party to the joint judgment in Chen, had held that it was in Applicant A. It was the nature of the motivation not the fact of motivation that was considered in Chen. As Burchett J had said in Ram in a passage which, as I have noted, was cited with approval by Gummow J in Chen, not every isolated act of harm will constitute persecution; there is a need for some element of motivation. That element of motivation may be found in the concept of persecution, or it may be found in the requirement that there be a link between the act of persecution and the particular Convention ground relied on (eg, as here, membership of a particular social group). The element of motivation is to be found discussed in the comment of McHugh J that what is involved is "selective harassment" of the requisite class of persons, even although the applicant may be the only person in the class who, in fact, is subject to discriminatory conduct (see at 258).

27  It is now necessary to refer to decisions in other jurisdictions in circumstances similar to that before us.

The situation in Canada and the United States

28  The leading authority in Canada in which the meaning of the phrase "particular social group" is discussed in Ward although the claimant in that case succeeded not on the ground of membership of a particular social group, but on the ground of persecution by reason of his political opinion. In that case the claimant had been a member of the Irish National Liberation Army ("the INLA"). Motivated by his conscience he had liberated captives taken by the INLA and subsequently given evidence against the INLA. As a result he was placed on the death list by that organisation and its supporters. The judgment of the Court, delivered by La Forest J, contains a detailed discussion of the meaning of the phrase "particular social group" and its place in the Convention, some at least of which has been subsequently followed or repeated in later cases. The phrase was not, in his Honour's opinion, intended as a catch all category. It was to be interpreted by reference to underlying themes of human rights and anti-discrimination. Three possible categories could be adopted as working rules (see at 739):

"(1)            groups defined by an innate or unchangeable characteristic;

(2)  groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3)  groups associated by a former voluntary status, unalterable due to its historical permanence."

The first of these categories accords with the normal sense of the words. The category presupposes a unifying characteristic which identifies the group. In the second and third category, it is the voluntary association, present or past, which provides the unifying characteristic. One could conceive of persons who had banded together in a social organisation subsequently being persecuted because they belonged to that social organisation.

29  In Re Mayers and Minister of Employment and Immigration (1992) 97 DLR(4th) 729, a case decided after the Supreme Court of Canada had reserved its decision in Ward, but before that case had been decided, the applicant for refugee status had been abused by her husband before she fled to Canada. The authorities in Trinidad had apparently been indifferent to her pleas for help and took no action on her complaints after being assured that what had happened was "a domestic spat". The Refugee Board had found that the applicant was a member of a particular social group, that being "Trinidadian women subject to wife abuse". It was argued by the Minister in judicial review proceedings before the Federal Court of Appeal that in so holding the Tribunal had erred in law.

30  The Court found that the Tribunal had not erred in law. It is relevant to note that the Court appears to have accepted the test of particular social group attempted in Sanchez-Trujillo v INS 801 F 2d 1571 (1986), a decision of the United States Court of Appeals, Ninth Circuit. The Court cast doubt on the possibility that women could be, without qualification, a social group and left open the question whether the social group adopted, Trinidadian women subject to wife abuse, was really a group defined by the persecution itself. On the last two matters Mahoney JA, with whom Isaac CJ and Heald JA agreed, said at 739:

"The phrase `social group' has a broad meaning in its ordinary dictionary sense but it is, in the statute, modified by `particular'. It seems to me that the adjudicator could readily have decided that, even if a `social group', women, constituting as they do about half of humanity, cannot aptly be described as a `particular social group'. He might equally, on that basis and in my view correctly, have decided that Trinidadian women do not constitute a particular social group. Neither of those decisions require more than construing the statute according to the ordinary meaning of its words.

It is otherwise as to `Trinidadian women subject to wife abuse'. There is presently no judicial or other authority upon which the adjudicator was obliged to rely that would lead him to a concluded opinion whether as a matter of law, they are a particular social group. The exercise I have gone through demonstrates that to construe the statute with a view to that determination requires the weighing of credible evidence in the form of foreign jurisprudence and learned commentary. A question may be posed for the future: since, in this context, persecution must be feared by reason of membership in a particular social group, can fear of that persecution be the sole distinguishing factor that results in what is at most merely a social group becoming a particular social group."

31  Two comments may be made. First, for my part, I see no reason why the fact that the class of women will constitute half the population, more or less, means that the class of women could not be a particular social group. If, for example, a state were to adopt a policy of imprisoning women because they were women, why would women not be able to claim refugee status? The word "particular" is not used in opposition to "general" so much as to emphasise the need that the social group must be capable of being defined with particularity. Secondly, the comments of Mahoney JA with regard to the class of "Trinidadian women subject to wife abuse" echo the ultimate decision of the High Court in Applicant A. Assuming that the sole distinguishing factor of the social group is the fear of persecution, Applicant A compels the conclusion that it is not a particular social group for the purposes of the Convention. In any case, Mayers would seem inconsistent with Ward.

32  The decision of the US Federal Court of Appeals in Sanchez-Trujillo exemplifies one of the three main lines of authority in the United States. It held that a class of young, urban, working-class males of military age who had maintained political neutrality was not a particular social group for the purposes of the Convention. It suggested that there was to be implied in the phrase "particular social group" the idea of a collection of people, closely affiliated with each other, who are actuated by some common impulse of interest. It said, however, that of central concern was:

"the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group."

The group which was suggested to exist was said not to be cohesive or homogeneous enough to exist.

33  While it can be accepted that those who associate together voluntarily can be a social group, it is hard to see that the element of voluntariness is critical to the existence of a social group. Sanchez-Trujillo was referred to by McHugh J in Applicant A as an example of a narrow interpretation of the phrase "particular social group", and by Dawson J as not persuasive. Gummow J referred to it without comment and Kirby J (dissenting in Applicant A) said it should not be followed.

34  It may be noted that Professor Hathaway at 157-169 cites Sanchez-Trujillo with general approval, despite a suggestion in Islam to the contrary (Islam 161) at 642. The learned author at the page cited in Islam (161), while criticising Sanchez-Trujillo for emphasising the importance of "voluntary associational relationship", notes that immediately thereafter there is a reference to a family as a social group, a relationship that is certainly not voluntary. In other words, Hathaway treats Sanchez-Trujillo as not requiring every social group to have a voluntary element. The criticisms of the decision take a different view.

35  Hathaway's own formulation at 161 owes much to Ward. It is in the following terms:

"...includes within the notion of social group (1) groups defined by an innate, unalterable characteristic, (2) groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change; and (3) existing groups defined by volition, so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it. Excluded, therefore, are groups defined by a characteristic which is changeable or from which dissociation is possible, so long as neither option requires renunciation of basic human rights ... a `particular social group' must be definable by reference to a shared characteristic of its members which is fundamental to their identity."

36  In contrast to Sanchez-Trujillo there is, in the United States jurisprudence, a second line of authority which is illustrated by the approach taken in Fatin v Immigration & Nationalization Service 12 F3d 1233 (3rd Cir. 1993). The applicant there had claimed to be subject to persecution by reason of her membership of a particular social group. The group was variously defined. One possibility was that the social group was "upper class Iranian women who supported the Shah of Iran and were thus progressives". The applicant claimed that she would suffer persecution because, if she did not comply with the gender-specific laws of Iran, which included the wearing of a veil, she would be tortured or jailed. It should be noted that the role of the Court was a limited one in that it was required to give deference to the decision of the Immigration Board. The Board had taken the view in In Matter of Acosta 19 I & N Dec 211, 213 (BIA 1985) that the phrase "particular social group" referred to "a group of persons all of whom share a common, immutable characteristic". Such characteristics could include sex, race, kinship or in some cases, past experiences such as former military service or land ownership. "Salvadorean taxi cooperative members" failed to qualify as a particular social group because, as the drivers could change jobs, the characteristics defining taxi drivers were not immutable.

37  Women were, so Fatin held, a social group sharing the common characteristic of their sex. The applicant, however, was not persecuted because she was a woman. Her claim was persecution because she was a member of a sub-group of women. The Federal Court of Appeals for the Third Circuit expressed the view that such a group might be a particular social group but there was no evidence that the applicant was a member of this tightly defined group. The other possible group was "Iranian women who found their country's gender-specific laws offensive". However if the group was defined in this way, the applicant still failed as the facts did not show that the consequences that would befall her as a member of that group would constitute persecution. She had two options as a member of that group, namely compliance or non-compliance. If she complied, there would not be persecution. If she did not there would be persecution. Implicit in the decision is the notion that the particular social group must be so defined that all members of it must be capable of being subjected to persecution. Since it was only a part of the group which would suffer persecution, namely that part which did not comply with the requirements that they wear the veil, any persecution she might suffer was not by reason of her membership of this group.

38  There have been two cases reported since Fatin was decided. Lwin v Immigration & Nationalization Service 144 F 3d 505 (7th Cir 1998) concerned the question whether parents of Burmese student dissidents were a particular social group. It was held that they could, although the applicant failed for other reasons. Manion J, who delivered the judgment of the Court, noted the struggle which the courts had to provide workable criteria for determining whether there existed a particular social group, that struggle being, in essence, the immutable characteristics test on the one hand, as adopted by the First and Third Circuits and exemplified in Fatin, and the test of "voluntary associational relationship", as exemplified in Sanchez-Trujillo. The Court applied the voluntary associational relationship test. So too did the 7th Circuit in Sharif v Immigration & Nationalization Service 87 F 3d 932 (7th Cir 1996).

39  One difficulty with the immutable characteristics test is that there has been no attempt to define what it was that made a group cognisable. Perhaps that expression means no more than is implied in the metaphor "common thread" used in Ram in Australia.

40  The third line of authority in the United State, perhaps but a variant of the other tests, emphasises external perception as important in defining a particular social group. Gomex v Immigration & Nationalization Service 947 F 2d 660 (2d Cir. 1991) is an example of this line of authority. That case held that women who had been previously beaten and raped by Salvadorean guerillas were not a social group because they lacked a recognisable and discrete attribute that would enable their persecutors to distinguish them from other women. So, a particular social group is one which consists of individuals who possess some fundamental characteristic in common that distinguishes them in the eyes of either the persecutor or the outside world.

41  It is obvious that women, as such, could constitute a particular social group in Canada on the test in Ward and on at least two of the tests applied in the United States, although it would seem that the persecution suffered would only entitle the applicant to refugee status if that persecution arose as persecution generally suffered by women. Women the subject of domestic violence could constitute a social group in Canada, but subject to the problem that the group should not be defined circularly by reference to the claimed persecution. The class of women per se could be a particular social group on the common immutable characteristics test in the United States, but not, it would seem, on any of the other two tests applied in that country.

The position in the United Kingdom

42  The House of Lords in its recent decision, Islam v Secretary of State for the Home Department [1999] 2 AC 629 (the case is sometimes reported as ex parte Shah, a result of the fact that two cases with similar facts were heard and decided together, but I shall refer to it here as Islam, considered the question of the meaning of particular social group in a way relied upon by the applicant before us. Not surprisingly, we were urged to apply what was there said, particularly the dictum of Lord Hoffman at 653-4, to the facts of the present case. It is thus necessary to analyse the decision and determine whether it is consistent with the approach taken by the majority in Applicant A. If it is, and assuming that it is not relevantly distinguishable, we should, in applying an international convention adopt an interpretation consistent with that of other countries and follow it, although noting that it may not be consistent with the approaches taken in Canada and the United States.

43  The applicant in Islam (as I have noted earlier, there were two applicants, each claiming on the basis of similar facts - I shall refer only to the facts of one of them) claimed to suffer violence in her country of origin, Pakistan, after she had been falsely accused by her husband of adultery. She claimed to fear persecution by reason of her membership of a particular social group, that being women who had offended against social mores or against whom there were imputations of sexual misconduct. As the report of the argument notes (see at 633), the Minister argued, consistently with Applicant A, that a particular social group could not be defined by the existence of persecution. The House of Lords unanimously upheld the claim to be treated as a refugee, overruling the Court of Appeal which had found that there was no common uniting feature which could constitute a relevant social group.

44  Lord Steyn commenced his reasons by noting that domestic abuse and violence against women was prevalent in Pakistan, as in many countries, but that that itself did not give rise to a claim to be treated as a refugee. What distinguished the case before the House of Lords was that the discrimination against women was partly tolerated and partly sanctioned by the State. Further, in considering the meaning of the phrase "particular social group" it was relevant to note that the preamble showed that countering discrimination was a fundamental purpose of the Convention.

45  His Lordship then referred with approval to that part of the judgment of McHugh J in Applicant A, as held that the particular social group of which the Convention spoke had to be one which existed independently of the persecution itself. After reviewing the American decisions, including Sanchez-Trujillo, and noting that the decision in that case had adopted a rather restrictive interpretation of the phrase "particular social group" and was not supported by the preponderance of case law in that country, his Lordship turned to Applicant A. That case was, according to his Lordship, different because the one child policy was a law of general application where there was no obvious element of discrimination. That, said Lord Steyn "may be the true basis of the decision of the High Court". I would interpolate here that there is nothing in the reasons of the majority in Applicant A to suggest that that was the basis of the decision. Chen, which was decided subsequently to Islam, does mention that the one child policy was a law of general application, but the reasons of the majority do not expressly suggest that this was the real reason for the decision in Applicant A and there is no comment at all on Islam. Applicant A itself was, in my view, decided upon the ground there was no basis other than persecution which defined the social group there claimed to exist. It is true that McHugh J did refer to the law as one of general application, as did the joint judgment in Chen. However, in my view, the joint judgment did not see the general nature of the law as the basis of the decision. That this is so appears from the following passage from Chen at 559:

"The question whether `black children' can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A. That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China's `one child policy'. In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind. to put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear."

46  Returning to the judgment of Lord Steyn, it is sufficient to say that his Lordship was of the view that cohesiveness was not an indispensable requirement for the existence of a particular social group. In so doing, his Lordship disapproved the suggestion to this effect in Sanchez-Trujillo. His Lordship said, a limitation in the words "particular social group" but that was not cohesiveness. Homosexuals were capable of being a particular social group so that persecution of them could qualify a homosexual for refugee status. Yet as a class homosexuals could hardly be called cohesive.

47  Although the social group contended for was narrower, his Lordship was of the view that the relevant social group was women. It did not matter (and this is an important question) that not all women would be the subject of persecution. Some Pakistani women would avoid persecution because their situation was not such that they were labelled as adulterous, just as some homosexuals might avoid persecution because of their particular privileged circumstances. One may say that it is not really correct to say that Pakistani women "avoid persecution" because they are not labelled as adulterous. Rather they are not subject to the persecution unless they have been. In other words, his Lordship, by framing the matter in terms of some members of the group avoiding persecution, has without really acknowledging it expanded the group so that he is able to say that the social group is women and that it is women who are the subject of persecution.

48  Had it been necessary to consider a narrower class, his Lordship would have accepted that Pakistani women who had not accepted the social mores of their country (ie those who were labelled adulterous or perhaps suspected of being adulterous) could be a particular social group. Such a class was, in his Lordship's opinion, similar to the class of left-handed persons discussed by McHugh J in Applicant A.

49  One further issue arose in the case; it arises in the present case and it is convenient to raise it at this stage while dealing with Islam. The words "by reason of" indicate causation. How should causation be looked at? Should a "but for" test of causation be applied? It was his Lordship's view that it was immaterial whether a "but for" test of causation or a test of effective cause was used. It could not, in his Lordship's opinion, be said that the fear of persecution arose because of the hostility of the husbands. Rather it arose because of the membership of the social group.

50  Lord Hoffman was likewise of the view that there existed a particular social group - women. There was widespread discrimination against women in Pakistan and the fundamental core of the Convention was persecution based on discrimination. Hence the phrase "particular social group" should be read as encompassing whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention. No element of cohesiveness, cooperation or interdependence was necessary to support the finding of a relevant social group. The applicant's fear of persecution was made up of two elements. The first was personal, addressed against her as an individual, that is to say, the threat of violence from the husband and his associates. The second fear arose because the State would not assist them because they were women. His Lordship said at 653:

"It is ... a fallacy to say that because not all members of the class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class."

51  I would interpolate here that the fallacy may, perhaps, be accepted. But to state the fallacy is not to answer whether that fallacy has application on the facts of a particular case. It is of course true that a member of the Jewish faith in Nazi Germany would have had a well-founded fear of persecution because she or he is a member of a social group of those professing the Jewish religion. (Of course religion is a separate Convention ground, but that may for present purposes be put to one side.) The fact that not all members of that group were in fact the subject of persecution would say nothing against the claim. There could be all sorts of reasons why they were not, for example, because they hid their religion, they were protected by associates in the upper echelons of the Nazi hierarchy and so on. The point is, however, that all members of the class are potentially liable to discrimination. In the present case the circumstances are different. Not all women are at risk of persecution, because not all women have abusive and alcoholic husbands.

52  The crux of his Lordship's reasons on the general issue before their Lordships is to be found in the following passage at 654:

"In the case of Mrs Islam, the legal and social conditions which according to the evidence existed in Pakistan and which left her unprotected against violence by men were discriminatory against women. For the purposes of the Convention, this discrimination was the critical element in the persecution. In my opinion, this means that she feared persecution because she was a woman. There was no need to construct a more restricted social group simply for the purpose of satisfying the causal connection which the Convention requires."

In considering the issue of causation it was necessary to take a common sense approach. At the heart of the case was the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the State.

53  May I here again be permitted an interpolation, albeit that so to do rather interrupts the analysis of the decision. With respect, I agree completely with the view that the issue of causation be approached on a common sense basis. A "but for" test of causation would be too rigid an approach. Having said this, however, the application of a common sense approach may lead one in different directions. For my part, I think there is a difficulty in the present case in characterising the persecution suffered by the appellant as caused by anything other than the personal characteristics of the relationship in which the appellant found herself. I do not think that a common sense approach would lead to the conclusion that the situation the applicant found herself in, and the situation in which she might find herself were she repatriated to Pakistan, would warrant a finding that she was persecuted just because she was a woman. No doubt the fact that she was a woman had a part to play in the alleged persecution, both because it was the foundation of her marriage to an alcoholic and abusive husband and because of the fact that she was a married woman meant that the police offered her no assistance. But I do not think that it is correct to say in all the circumstances that her persecution was by reason of her membership of any particular social group, however it may be defined. But that is but another matter.

54  Having regard to the way the present case was argued before us it is convenient here to set out the dicta upon which senior counsel for the respondent relied. His Lordship said, while discussing the issue of causation at 653-4:

"Suppose oneself in Germany in 1935. There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question `Why was he attacked?' would be `because a competitor wanted to drive him out of business.' But another answer, and in my view the right answer in the context of the Convention, would be `he was attacked by a competitor who knew that he would receive no protection because he was a Jew'."

55  The example is a powerful one, as one might expect from Lord Hoffmann. Few would have difficulty with the conclusion that the person attacked would be entitled to be considered as a refugee. However one must take care, with respect, not to be distracted by the abhorrence civilised people undoubtedly have of the persecution of the Jews in Nazi Germany from noting the implicit assumptions in the example. First, the question of social group does not arise - no question of coherence or common thread need arise where the persecution is on the grounds of religion as I would prefer to say, rather than race. Secondly, it is far from clear from the example that all Jews are not subject to persecution, whether or not it be the case that all Jews are actually persecuted. A governmental policy that would, for example, imprison Jews who did not wear yellow stars out of doors in an environment coloured as it was by Nazism, where the wearing of yellow stars out of doors led to those who did being humiliated, would in my view amount to a policy to persecute Jewish people by reason of their Jewishness. Thirdly, the postulated facts in the second example given by his Lordship include as a fact that the physical violence of the attack against the competitor would not happen unless the government pursued the policy of allowing those who wished to attack Jews with impunity. In other words the government has actively pursued a policy which would encourage attacks on Jews. So the example postulates a case where the government was complicit in the violence to which Jewish people (that is to say all Jewish people) were potentially subjected.

56  This second example of Lord Hoffmann is, with respect to the submission made before us, a long way from the facts of the present case. If the social class is taken to be women, then two circumstances would need to be found before an applicant could succeed to make out the Convention ground. The first is that all women are potentially subject to violence. It hardly makes sense to say that women can avoid being persecuted by not marrying into an abusive relationship, whatever may be the case with women whose husbands accuse them of adultery. All women in Pakistan are not potentially subject to the violence which can constitute persecution. This has only to be stated to be accepted. It is only women in an abusive relationship whose husbands are alcoholically or otherwise abusive (or women who are labelled as adulterous) who are potentially subject to the violence. Secondly, there would be a need for a finding of fact (it is not there at the moment, so the case would need to be remitted for it to be found) that the government was complicit in (or at the very least officially tolerated) violence to women in abusive relationships. The example given by Lord Hoffman is not an example of mere inaction, it is an example of direct government policy influencing, perhaps even encouraging the actual act of persecution.

57  Lord Hope agreed with both Lord Steyn and Lord Hoffmann. In separate comments his Lordship expressed approval with McHugh J in Applicant A that to define the social group by reference to the persecution would be circular. However, there was, in his Lordship's view, a difference between defining the group by reference to persecution and defining it by reference to the discrimination which existed. Having regard to the laws of Pakistan, women are discriminated against. The reason why the appellant feared persecution was not just because she was a woman, it was because she was a woman in a society which discriminated against women.

58  Lord Hutton agreed also with Lord Steyn, but was of the view that the particular social group should be taken as the narrower group, women suspected of adultery, rather than the wider group of all women in Pakistan.

59  Lord Millett dissented. His Lordship was of the view that for a group to constitute a particular social group within the Convention it had to be a cognisable group sharing common characteristics which set its members apart from society at large and for which they are jointly condemned by their persecutors. In his Lordship's view no cognisable group existed independent of the social conditions on which the persecution was founded. It would seem that it was equally as circular in his Lordship's view to define the group by reference to discrimination (itself the source of the persecution) and the persecution itself.

60  The question that has to be resolved is whether Islam can stand with Applicant A. If it can, and leads to the conclusion that the appellant here must succeed, then for my part I would follow it. If it can not, then we are bound to follow Applicant A, unless it is distinguishable.

61  I have great difficulty in reconciling Islam with Applicant A. If the group is taken here as women as a whole, it is difficult with respect to see why the persecution feared arose by reason of the appellant being a woman. The causation difficulty is, in my opinion, not so readily dismissed as the majority of their Lordships appear to say. This is the problem which McHugh J drew attention to in Applicant A, when pointing out that to define the class too widely means that it will be more difficult to find that the persecution arises by reason of membership of that group. In one sense, in Applicant A one could easily define the social group as parents - for the law discriminated against parents because they were parents. There was no discrimination against any other group. But something more had to be satisfied so that the persecution feared arose by reason of membership of the social group of parents - that was the fact that the couple have more than one child. No one suggested in Applicant A that parents as such were a relevant social group, although there is no reason to suspect that parents could be a social group. But the problem was that not all parents were subjected to persecution, it was only a sub-group of parents, namely at least parents with one child, that was the subject of persecution. However, that sub-group of parents with one child was in fact expressly rejected.

62  To delineate on the facts of Islam the social group as the narrower group, that is to say, women whose husbands had (perhaps falsely) labelled them as adulterous is to define the group by reference to the persecution which was inflicted. The only thing in common these women had as a group was their persecution. There was no other common thread. I can, with respect, see no difference, at least in a case such as the present, between the circularity involved in defining the group by reference to persecution and the circularity involved in defining the group by reference to discrimination. For it was the discrimination which gave rise to the persecution.

The situation in the European Union

63  Ready access to decisions in Germany or France is not easy. In an article "Persecution due to Membership in a Particular Social Group: Jurisprudence in the Federal Republic of Germany" (1990) 4 Georgetown Immigration Law Journal 381, Fullerton discusses the German jurisprudence as at the date of the article. The learned author refers in particular to a judgment of the Administrative Court in Ansbach (Judgment of 4 January 1985, No AN 1269-XIL/79, Vergewaltungsgericht Ansbach [VGA]) where a claim based, inter alia, on persecution alleged to have been suffered by a woman who had married a man of another caste was rejected on the basis that the actions complained of were undertaken by private individuals. The court in that case noted that the police did not intervene, for reasons which related to laziness, poor training or corruption and that many police agreed with the conservative attitudes and did not discourage those who acted against the woman. The courts would only intervene where the criminal law was violated. The claim thus failed because it had not been shown that government inaction was the result of the applicant's membership of a particular social group. There was a lack of government complicity in the persecution. The author notes that the Ansbach court ignored the principle that severe ill-treatment by private individuals could constitute persecution if the government either tolerated the activity or was unwilling to protect the victims.

64  The article notes that different tests have emerged to identify a particular social group. The Administrative Court in Wiesbaden (Judgment of 26 April 1983, No IV/1 E 6244/81) focused on two questions. First, whether the alleged group was actually perceived by the general population as a group, rather than an agglomeration of individuals. Second, was whether the group was viewed in strongly negative terms. By contrast, the Administrative Court of Hannover in its Judgment of 6 June 1984, No 1 OVGA 91/82 As, Verwaltungsgericht Hannover [VGH] suggested that for there to be a particular social group within the meaning of the Convention there needed to be both a certain degree of homogeneity and a degree of inner structure.

65  The Commentary of Hullman in Carlier, Vanheule and Galiano (eds) Who is a Refugee? A Comparative Case Law Study, 1997 at 284 suggests that women from Iran confronted with a fundamentalist society imposing repressive measures where extra-marital relations or illegitimate children are involved will not be entitled to refugee status in German. This seems, however, to be because the measures have been seen not to reach the threshold of political persecution.

66  Schank and Galiano writing of the situation in France in the same publication at 400 refer to claims made in that country by persons who claim "difficulties" with spouses or cohabitating partners as being rejected because the conduct claimed of is not committed by the public authorities and thus outside the Convention. However, the authors refer to a ruling by the Conseil d'Etat, the highest French administrative court in the Dankha case in 1983 that while the persecution claimed did not emanate directly from the authorities it could receive recognition in France where the facts were such that the persecution was tolerated or encouraged by the public authorities.

Single Judge decisions in Australia after Applicant A

67  In the course of argument we were referred to decisions of single judges of the Court in Basa v Minister for Immigration and Multicultural Affairs [1998] FCA 830 ( Sackville J), Minister for Immigration and Multicultural Affairs v Ndeje [1999] FCA 783 (Weinberg J) and Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641.

68  In Basa, the applicant, a national of the Philippines, claimed to fear violence from her former partner as a member of a social group comprising women in the Philippines at risk of domestic violence. The Tribunal had rejected her claim on the basis that Filipino women did not constitute a social group. However the Tribunal also rejected the claim on two other bases, namely that she feared harm inflicted by her partner and that there was no real chance that, if she told the police in the Philippines of the full extent of her fears, they would not protect her. Sackville J held that the Tribunal had not made a reviewable error. His Honour commented that the finding that the applicant did not fear harm by reason of her membership of a social group was inevitable. In his Honour's view the harm she feared came from the circumstances of her marital relationship. The case may be said to do no more than turn on its particular facts.

69  In Ndeje the applicant, a national of Tanzania, claimed to fear for her life because her husband would take revenge upon her for having left him with the children. She relied as well upon the domestic violence to which she would be subjected. The social group said to exist was "married women in Tanzania". The applicant was successful before the Tribunal, but the Tribunal's decision was reversed by Weinberg J. His Honour did so because he was of the view that, while generally State action would be necessary to a finding of persecution, persecution on a Convention ground could still exist where the harm feared stemmed from individual and not State action but only where the State was complicit in the violence which was feared. Mere unwillingness or inability of the State to do anything to prevent the violence was not enough where the individual violence feared was not motivated for a Convention reason. On the facts of the case there was no evidence that the State inaction was motivated for a Convention reason. Complicity could only arise where the individual act of persecution itself was motivated by a Convention reason.

70  The second matter discussed by his Honour was whether there was a relevant particular social group. This the Tribunal and his Honour identified as "married women in Tanzania". His Honour was of the view that it was open to the Tribunal to find that such a group existed and that in doing so it had not identified the group by reference to the persecution.

71  Clearly this decision must be wrong if the present respondent is to succeed. It is suggested that it is because it is inconsistent with Chen. It is obviously inconsistent with Islam notwithstanding that that case is referred to throughout the judgment. It is only inconsistent with Chen if that case stands for the proposition that it is unnecessary in proving persecution for reasons of membership of a particular social group to prove some motivation. However, in my view, Chen does not stand for so wide a proposition. In Chen, the High Court certainly held that it was unnecessary to show enmity or malignity against a member of the group to come within the definition. But that does not mean that there is no need to prove a motivation for the persecution, for there is the need to show that the persecution is "for reasons of" membership of the particular social group. When the joint judgment suggests at 560 that it will be necessary to look at the "particular reason assigned for that conduct", ie the persecution, in my view their Honours were suggesting that that was the yardstick of motivation, not enmity or malignity. If it is shown that there is discrimination manifested in persecution against the social group and the discrimination arises from a relevant attribute in the group it will almost always (perhaps always) have been shown that there is persecution by reason of membership of a social group. There may be one qualification, which is hardly likely to arise in practice. Let it be assumed that there is persecution of persons who are members of a social group and it is demonstrated that the persecution was not motivated against the group because of some attribute of the group, but it was just accidental that members of the group were discriminated against. In such a case it is hard to see how it could be held that the persecution arose "by reason of" membership of the social group. That situation is so unlikely as to need no further comment.

72  It follows in my view that the judgment of Weinberg J is, with respect, not inconsistent with Chen.

73  The third of these decisions raises a matter which is peripheral to the present appeal, and the facts in question were wholly different. The appeal concerned a claim of fear of persecution where the persecution complained of was extortion. The claim was made on the basis of membership of a particular family group, namely the family to which the applicant belonged. The Tribunal had found against the applicant and its decision was set aside at first instance by Hely J. The full Court affirmed the judgment appealed against. It held that a family could be a particular social group and it is hard to see how there could be much controversy about that. It is the second matter discussed in the judgment which is more important. The Tribunal had found that the persecution was motivated by self-interest on the part of criminals to recover money they believed was due to them. The full Court expressed the view that there could in a particular case be two motivations for a particular act of persecution. So the existence of a criminal motive would not exclude the existence of a Convention motivation.

74  I have no problem in accepting the principle that a finding of a non Convention reason for persecution does not necessarily preclude a finding of a Convention reason. I do not, however, think that principle applicable here.

75  In summary, I am of the view that the present case does differ from Islam. On the narrower view the social group is "women with alcoholically abusive husbands"; on the wider view it is women as such. The persecution that is feared is being beaten. It may be possible to say that it is being beaten in circumstances where State assistance is ineffective. But the beating which is feared does not, as such, arise because the victim is a woman; it arises because the victim has aroused the ire of the drunken husband. While it may be accepted that homosexual men constitute a social group and that not all fear persecution, because some may avoid it by not disclosing their sexuality, or because they are in some privileged position, all homosexuals are subject to the potential of persecution. But not all women are subject to the potential of being beaten. Something more is involved. That something more is the association through marriage with an abusive and alcoholic husband. Further, it is not suggested that the State is complicit in the abuse that is suffered by a woman married to an alcoholically abusive husband. By contrast, in Islam Pakistani laws imposed severe penalties on adulterous women.

Conclusions

76  It is clear that the present is a difficult and important case. The issues are far from easy. The authorities, both local and international, provide no clear guidance. This is particularly difficult where the subject matter in issue is the interpretation of an international treaty of general application. So far as is possible each state should adopt an interpretation consistent with the interpretation adopted by other states. This Court is bound to follow the views of the High Court. Although we are not bound to follow decisions of the House of Lords, we would do so, that court being the highest court of the United Kingdom, unless its views conflict with those expressed by the High Court or are otherwise out of line with other international authorities which are thought to be correct. With respect to those who think otherwise, I do not think that the views of the House of Lords are consonant with the views of the High Court. Nor are the views of the House of Lords consistent with American or for that matter Canadian authority. Further I am not prepared to seek to explain decisions of the High Court by reference to matters which the decisions themselves do not raise.

77  In my view the law as found by the High Court and, so far as is not inconsistent with the High Court, as accepted by the courts of other common law jurisdictions can be shortly summarised as follows:

1.   To fall within the Convention, it is not necessary that the persecution be initiated by the State. All that is necessary is that the persecution be for a Convention reason and that the State be unable or unwilling to stop it. Where the harm feared is not initiated by the State and is not initiated for a Convention reason, there may still be persecution within the meaning of the Convention where the State is complicit in the harm and is complicit for a Convention reason or where the State is prepared to tolerate the harm and does so for a Convention reason.

2.   The persecution complained of must involve some serious detriment, disadvantage or harm involving an element of attitude or motivation expressed in the requirement that the persecution arise by reason of the Convention ground. It is not so much the nature of the conduct but the discriminatory nature of it which marks out conduct as persecutory.

3.            Persecution involves action. Mere inactivity is not of itself persecution. Official tolerance by the State of persecution, while apparently in conflict with this proposition is, in my view not, for it involves conscious decision-making. It is unnecessary to consider in this case the situation where the State is unable to prevent the persecution. That is not suggested.

4.   A particular social group exists where there is a group with some common characteristic (ie a common thread must bind the group). While that common characteristic may be found in voluntary association by the members there is no need for a requirement of voluntariness to exist.

5.   The persecution complained of must arise by reason of membership of the particular social group. However, there need not be a motive of enmity or malignity towards the members of the group on the part of the persecutor. While not all members of the group need be shown to be actually persecuted, all members of the group have to be subject to the potential of persecution. If one characteristic distinguishes between those members of a social group who are subject to persecution and those who are not, then it is difficult to say that persecution arises by virtue of membership of the wider social group. Rather the persecution is by reason of membership of a sub-group which may satisfy the test of particular social group.

6.   While in some cases the persecution may be motivated by more than one reason it is necessary, for the persecution to found a claim for refugee status, that it be motivated by reason of the membership of the social group. That will be a matter of fact and causation should be approached on a common sense basis.

78  The question that remains, however, is whether Islam should be treated as authority for the proposition that persecution may fall within the Convention where the persecution consists of harm which is not Convention related and the State is not complicit in that harm, nor tolerates it, but is indifferent or inactive in dealing with it. In my view it should not be so treated. One reason for not so doing is to be found in the comment of Lord Hoffman at 648 which explains why there is a distinction between those subject to domestic violence in the United Kingdom and women in Pakistan such as Mrs Islam. As Lord Hoffman notes, domestic violence exists in many countries including the United Kingdom. I would add, unfortunately, that this includes Australia. The reason why persons the subject of domestic violence in the United Kingdom could not be considered refugees was, in his Lordship's view, because they had access to the courts. It may be interpolated here that in the United Kingdom, as in Australia, access to the courts is expensive and for that reason may not be a practical alternative. Be that as it may, on the evidence in Islam, access to the courts was unavailable to Mrs Islam. It would, according to his Lordship, have been useless in that country for Mrs Islam to apply to the courts (or the police). Indeed, the evidence went beyond that as the decision of Lord Steyn notes at 635-6. Pakistani laws at the relevant time explicitly discriminated against women found to be adulterous. Women were liable to be punished if guilty of extra-marital intercourse. Thus the fact that Mrs Islam had been falsely labelled by her husband as adulterous led to the result that she would have been liable in the courts to serious punishment (and in proceedings in which she was not able to give evidence). On these facts, it is not too difficult to see the social group as adulterous women, or women denounced as adulterous and the persecution suffered as arising by reasons of the fact that those accused of adultery were members of that group.

79  The facts in the present case are different. There is no finding of fact, or for that matter any suggestion that the protection of the courts in Pakistan was unavailable to Mrs Khawar, had such protection been sought, any more than in Australia. The evidence was merely that complaint to the police led to indifference or inaction by the particular police officer/s to whom the complaints were directed. It was not suggested that Mrs Khawar had sought to take action in the courts against her husband. There was no law of Pakistan suggested to be applicable here which discriminated against women who had been battered or who had been the subject of domestic violence, similar to the law in Pakistan which punished adulterous women. The unwillingness of the particular policemen to whom the complaint was addressed to intervene was not, as I have said, itself persecution, absent a factual finding that the laws of the State provided no redress, or that the State, was complicit in or actually tolerated such domestic violence.

80  If, in the present case, the social group to which Mrs Khawar claims to belong is defined as women with alcoholic and abusive husbands, the group is then defined not by reference to the discrimination (for that is of women) but by reference to the circumstances which themselves give rise to the persecution. But it is this which we are instructed by the High Court not to do. The same is not so in Islam, or at least not so to the same extent. It is possible to imagine a class of women accused to be adulterous as a recognisable class, existing independently of the persecution.

81  If, in the present case, the social group to which Mrs Khawar claims to belong, and which she says provides the source of her persecution, is women in general, then it is clearly inconsistent with Applicant A to find this to be a relevant class. Mrs Khawar was not at risk of harm because she was a woman as such. She was only at risk of harm because her husband was an alcoholic who, when drunk, abused her.

82  I thus, with some regret, find myself in disagreement with the views expressed by Lindgren and Mathews JJ. I would, contrary to their opinion, allow the appeal.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 23 August 2000

MATHEWS J:

83 I agree with Lindgren J.

I certify that the preceding one (1) numbered paragraph are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated: 23 August 2000

LINDGREN J

Introduction

84  The appellant appeals from a decision of a Judge of the Court setting aside a decision of the Refugee Review Tribunal ("RRT") by which the RRT had affirmed a decision of a delegate of the appellant (respectively "the Delegate" and "the Minister") refusing to grant protection visas to the respondents.

85  The respondents are Ms Khawar and her three children. It has been accepted at all times that only Ms Khawar has made specific claims relevant to the issuing of a protection visa and that the applications made on behalf of her children succeed or fail with hers. Accordingly, it will be convenient if, generally, I refer to Ms Khawar alone.

86  Ms Khawar and her children arrived in Australia on 17 June 1997 and lodged combined applications for protection visas on 16 September 1997. On 4 February 1998 the Delegate refused their applications. On 18 February 1998 they sought review of that decision by the RRT, which, on 11 January 1999, affirmed the Delegate's decision.

87  Section 65 of the Migration Act 1958 (Cth) ("the Act") provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant it. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention").

88  Article 1A(2) of the Convention provides that a refugee is any 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 [her] nationality and is unable, or owing to such fear, is unwilling to avail [herself] of the protection of that country ...". (Article 1A(2) of the Convention)

89  Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Convention.

90  The RRT's decision was a "judicially reviewable decision" (s 475(1)(b) of the Act), Ms Khawar was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court had the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

91  Ms Khawar's claim was that she was outside the country of her nationality, Pakistan, and was unwilling to return to it because of a well-founded fear of being persecuted for her "membership of a particular social group". I will discuss the identity of that group below.

Ms Khawar's claims

92  The following summary of Ms Khawar's claims is taken from the Reasons of the RRT and of the learned primary Judge.

93  Ms Khawar alleges that in Pakistan she was a target of domestic violence at the hands of her husband, and, to a more limited extent, of his family. The violence included slappings, beatings, which led to her hospitalisation, a threat to throw acid on her and a threat to kill her by setting fire to her. On one occasion, an attempt to set fire to her commenced when she was doused with petrol, an activity which stopped when a neighbour arrived in response to the screams of Ms Khawar and her children.

94  There are two areas of the evidence before the RRT that merit special mention. The first is the family background to the physical abuse. The second is evidence relevant to the lack of effective protection of Ms Khawar by the Pakistani authorities.

Family background

95  The RRT's account of Ms Khawar's claims and evidence includes the following passage:

"In 1980 the applicant and her husband were married. The marriage was a love marriage which met with disapproval from the husband's family who had already arranged for him to marry one of his relatives. The applicant's parents also disapproved of the marriage because the applicant's husband's family did not agree to it. However, they gave their consent to the marriage because they knew that the couple would marry anyway.

The couple moved into a flat of their own after their wedding. The applicant gave birth to her first daughter in September 1981. For about four to five years the marriage was happy and normal. The applicant's husband had severed contact with his disapproving family. After four or five years, however, the applicant's husband told her that he had re-established contact with his family. Soon afterwards, the husband's parents and his brother Tariq visited their house. They blamed the applicant for taking away their son and forcing him to marry her. They accused her of being responsible for all their problems. The husband soon began to see his family regularly. His brother Tariq visited on several occasions, each time criticising and starting arguments with the applicant.

The husband's attitude towards the applicant began to change. He would side with his brother in their arguments, and blamed her for his troubles. He told the applicant that it was because of her that he had left his parents. He also began to scold their daughter. When their next child, born in April 1986, was another daughter, he began to blame the applicant for not bearing him a son.

The applicant's father died in 1986, and her mother in 1987. Disputes over the inheritance divided her family. The applicant claims that this left her with less protection from attacks from her husband and his family. Her brother Javed moved away, and her brother Amir moved to Australia in 1989. Her brother Pervaiz has lived in the USA for several years. While the applicant did initially receive some moral support from Shoaib,[Ms Khawar's other brother] he became an alcoholic in 1994 and moved to Karachi.

After the applicant's husband's father died in about 1987, his mother and brother came to visit. The husband's mother levelled virulent abuse at the applicant, calling her a prostitute, without shame, dignity or status. She also directed abuse at the applicant's parents. When the applicant defended her parents, her husband slapped her and told her to get out of his sight.

Tariq also began to visit the house more often, abusing the applicant, blaming her for not bringing a dowry, and accusing her of being a prostitute by marrying her husband against the will of her own parents. He would also urge her husband to divorce her. Her husband also became more aggressive, beating her and threatening to throw acid on her and kill her.

The applicant's brother Shoaib would occasionally talk to the applicant's husband about the way he treated her, and she sometimes took refuge in his house with her children. He also once took her to hospital. After he became an alcoholic, however, his support ended, and the violence became more frequent and intense. The husband also increasingly beat his eldest daughter who would intervene to try to protect her mother.

Her husband told the applicant that the children belonged to him. She knew that if she left him, he would take the children away. This threat frightened her into staying with him, despite the violence.

Around this time, her husband began to work with his brother Tariq. The applicant soon learned that he was seeing another woman. She hoped, however, that by bearing him a son in December 1995, her husband's attitude would change. Instead he became more abusive, continuing to beat and threaten her, often in tandem with Tariq."

96  The RRT asked Ms Khawar whom she feared in Pakistan and she answered that she feared her husband and his family.

Lack of protection from the Pakistani authorities

97  Ms Khawar went to the police to report the incidents of violence on four occasions. The first time (before May 1995), the police refused to take the complaint, telling her that such incidents were occurring throughout the country and that they could do nothing about it. In the passage in her statutory declaration dated 22 September 1997 which apparently gave rise to this finding, Ms Khawar also said that the officer stated "if [the police] had to do something about all the similar complaints it would take all their time" and he "refused to take the complaint and then ignored [her]".

98  The second time was in November 1996 after Ms Khawar's husband had threatened to burn her alive. Ms Khawar had heard reports about such burning incidents and as her situation had become critical she had started to take the threat seriously. She went with her sister's husband to his local police station, hoping that she would be taken more seriously if she were accompanied by a man. Although the police officer made a report, he did not write down her story accurately and did not seem to take her seriously. When her husband returned home that evening with his brother, Tariq, he told her that he knew of the police report and warned her that the police could do nothing. He and Tariq then beat her so harshly that she had to be taken to hospital where she stayed for seven days. In Ms Khawar's statutory declaration, she also said that the officer "did write that [her] husband had threatened to throw oil on [her] and burn [her] down". In relation to her husband's and his brother's response, she stated that they said to her "We are standing in front of you what did you think the police could do to us?" and that they were the "kings" and that the police could "do nothing".

99  In January 1997 Ms Khawar questioned her husband about seeing another woman and he beat her. The next day, for a third time she went to the police station. Her brother-in-law again accompanied her. The police officer took another report but what he wrote was grossly inaccurate. Her brother-in-law said he would no longer accompany her to the police. According to the relevant part of Ms Khawar's statutory declaration, Ms Khawar told the officer, who was the same one as before, that she had made "a number of reports" and that "the police had done nothing", to which the officer did not respond except to say that he was listening and was writing whatever she asked.

100      The fourth appeal to the police was in March 1997. Ms Khawar's husband came home with his brother. Her husband asked her why the telephone had been engaged and accused her of having an affair. Ms Khawar went to her room. Her husband came to her to tell her to warm his food. She came out to the kitchen. Her husband pulled her by the hair. He and Tariq then poured petrol on her. She began to scream. Her children heard her, came to the kitchen and also began to scream. Hearing the commotion, a neighbour came over to investigate. When he rang the doorbell, the husband and Tariq left. Ms Khawar then locked herself and the children in her room until morning.

101      After this attack, Ms Khawar reported to the police what had happened but the officer, whom she had seen once before, told her that women always tried to blame their husbands for problems of which they were the real cause and that she should sort out her "own work". In the relevant part of her statutory declaration, Ms Khawar also stated that this time she went to the police station alone, that she had to wait an hour before anyone would see her, and that the officer "did not make a report or try to console [her]".

102      Upon returning home, she found that her husband had left. He did not return for fifteen to twenty days. During this time Ms Khawar decided to flee Pakistan. It did not take long for her to receive her passport as her cousin worked in the passport office in a suburb of Lahore and was able to get things done quickly. But her initial application for a visa was refused. She attributed this to a contact which she said her husband had made with the Australian High Commission, advising it that his wife had no intention of returning to Pakistan. She moved to her sister's house with her children and again applied for a visa, stating that she wished to visit her pregnant sister-in-law in Australia. Her brother-in-law, pretending to be her husband, accompanied her to an interview at the Australian High Commission. She was granted the visa and left Pakistan on 15 June 1997.

Findings and reasons of the RRT

103      The RRT stated that Ms Khawar's claims revolved around "a dispute she had with her husband and her husband's family". After referring to the evidence of the cooling of the relationship between husband and wife and the animosity of the husband and his family towards Ms Khawar, the RRT said that for the purposes at hand it accepted her claims. Then it stated:

"It is clear to the Tribunal that the problems which the applicant faced with her husband were problems peculiar to their relationship. There is nothing in the evidence before the Tribunal to suggest that the applicant was being targeted by her husband or his family for a Convention reason. She was being harmed and harassed because of the particular dynamics of the family into which she married and the circumstances of her marriage. Her husband treated her well during the first five years of marriage. There is no evidence that he ever tried to harm her in any way during that period. It was only when he re-established contact with his family that he started to resent the applicant for causing him to sever his relationship with his family over the previous five years."

104      The RRT was not satisfied that there was a nexus between Ms Khawar's claims and the Convention ground of "particular social group". On the question of the required nexus, it referred to Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 437 at 443 and Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, then stated:

"Thus, the Convention ground must be more than merely peripherally linked to the persecution. In relation to the Convention ground of `particular social group' the persecutor must persecute because of the victim's actual or perceived membership of a cognisable group in society. It is not necessary that the fear of persecution be solely attributable to membership of a relevant social group; however, it must be a significant enough proportion of the reason to be able to say that the persecutor is motivated by that factor [the RRT cited Jahazi at 443 and Ram at 568-569].

The Tribunal finds that the applicant's husband was not motivated to harm her because she was a member of a particular social group. There is no nexus between the harm which the applicant claims to have suffered at the hands of her husband and the Convention ground of particular social group. She was not harmed because she was a member of any of the particular social groups proposed by the applicant's adviser: `women'; `married women in Pakistan'; `married women in Pakistan without the protection of a male relative'; `married women in Pakistan separated from one's husband and without the protection of a male relative'; `married women in Pakistan suspected of adultery'; or `women who have transgressed the mores of Pakistani society'. She was not persecuted because she was a member of a particular family. She was harmed because the applicant's husband's family were angry or shamed by the fact that he married her for love when he was already engaged to a relative and because she brought no dowry to the family. She was also seen as being responsible for her husband being estranged from his family for five years."

105      The RRT rejected a submission that even if "private, personal motivation" was found to be the initial cause of the violence, "this was soon superseded by other motivators which [were] clearly related to the applicant's membership of a particular social group." Of this submission, the RRT stated:

"The adviser appears to be suggesting that what developed in the applicant's relationship with her husband and his family was influenced by the proper role expected of women in Pakistani society. This is not supported by the evidence before the Tribunal. The evidence before the Tribunal indicates that the applicant's problems were solely related to the fact that she married her husband against the wishes of his family causing him to sever his contact with them for a number of years. The resentment which had built up was taken out on the applicant when her husband re-established contact with his family. While he and his family may have harassed the applicant with comments about the applicant's inability to bear a son, her failure to bring a dowry into the marriage, her moral character, her failure to act according to the wishes of her family, and her status as her husband's property, these appear to be simply ways in which the family sought to taunt and abuse the applicant. They were not the motivators for the abuse.

The Tribunal finds that the applicant's difficulties with her husband were of a private and personal nature and are not related to the Convention ground of particular social group, nor any other Convention reason. The Convention was not intended to provide protection to people involved in personal disputes."

106      The RRT also rejected a submission that Ms Khawar faced persecution because she failed to follow the strict social mores expected of married women in Pakistan.

107      In the "Claims and Evidence" part of its Reasons, the RRT referred to a submission made on behalf of Ms Khawar that

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

In the same part of its Reasons the RRT referred to a submission made on behalf of Ms Khawar to the effect that the state discriminated against women in such a way that it became complicit in the husband's persecution of his wife. The RRT did not return to these submissions in its "Findings and Reasons", stating simply that what Ms Khawar feared was violence from her husband and his family motivated by private, family considerations.

Reasoning of the primary Judge

108      Before her Honour, Ms Khawar submitted

*    that persecutory conduct can be Convention based, even though the persecutor, as an individual, has no discriminatory motive, "so long as the state withholds effective protection on a Convention ground"; and

*    that a group defined according to gender, such as married women in Pakistan, can qualify as "a particular social group" for the purposes of the Convention definition.

The Minister did not challenge the contention that, as a matter of law, women in Pakistan could constitute "a particular social group", but submitted that it was not inevitable that a tribunal of fact would find that they did so, and that this issue would be one for the RRT to determine if the matter were remitted to it. Accordingly, the argument before the primary Judge concentrated on the first submission.

109      Ms Khawar submitted that there could be persecution within the meaning of Article 1A of the Convention where a non-state agent persecutes for a non-Convention reason, and where, for a Convention reason, state protection is not available.

110      Her Honour referred to two cases which had been decided since the RRT's decision: Islam v Secretary of State for the Home Department [1999] 2 AC 629 (HL) ("Islam") and Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 (FCA/FC) ("Sarrazola"). Since her Honour's own decision, the High Court has delivered judgment in Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 ("Chen"). Because it will be necessary for me to refer to all three cases below, I will not relate her Honour's treatment of the first two here. It suffices to say that she thought that the approach to the question of the required causal link between persecution and a Convention ground adopted by the majority of their Lordships in Islam was consistent with Australian jurisprudence and should be followed. Her Honour stated:

"The Tribunal in the present case did not explicitly refer to the context provided by the Convention when considering the issue of the motivation of the applicant's husband in acting violently towards her. It did not determine whether the applicant is a member of a particular social group in Pakistan within the meaning of the Convention. The Tribunal's belief that it was unnecessary in the circumstances to determine whether the applicant is a member of a social group may explain why it did not give consideration to information concerning the status of women, and the prevalence of domestic violence against women in Pakistan or to the applicant's evidence that her husband had said, in effect, that the police could do nothing about his violence towards her. Had the Tribunal made a finding that the applicant was a member of a social group in Pakistan which was comprised of Pakistan women, or alternatively married Pakistani women, it may well have concluded, as Lord Steyn did on the evidence in Islam at 1028, that:

`Given the central feature of state-tolerated and state-sanctioned gender discrimination, the argument that the appellants fear persecution not because of their membership of a social group but because of the hostility of their husbands is unrealistic.'

I conclude that in considering the question of the motivation of the applicant's husband in harming her, the Tribunal made an error of law involving an incorrect interpretation of the applicable law (ie. the phrase `a well-founded fear of being persecuted for reasons of ... membership of a particular social group'). First, the Tribunal failed to construe the phrase as a whole having regard to the purposes of the Convention and s 36 of the Act. Concomitantly, the Tribunal reached a conclusion on the question of whether the applicant's fear of persecution was for reason of her membership of a particular social group without first identifying the relevant social group, if any, of which the applicant was a member. The matter will be remitted to the Tribunal for further consideration according to law."

My reasoning on the appeal

General

111      The critical question debated on the appeal is whether the RRT erred in its view that absence of state protection for any particular social group of which Ms Khawar might have been a member was, as the RRT considered, in the circumstances, irrelevant to the causal link demanded by the words "for reasons of" in the Convention definition of "refugee". In the passage from her Honour's reasons set out above, she did not identify the RRT's error of law in these terms but it is clear from her reasons for judgment as a whole and from the fact that she adopted the approach to the question of causation taken by the majority of their Lordships in Islam, that she thought the RRT had erred in this respect. The grounds of appeal reflect this understanding of her Honour's reasons by identifying as grounds of appeal a misinterpretation of the Convention definition, and her Honour's having followed:

"the decision of the House of Lords in Islam v Secretary of State for the Home Department insofar as the House of Lords there held that the reason for the lack of State protection was a sufficient causal link to satisfy the definition of a refugee without regard to whether the motive of the person inflicting the actual harm was for a Convention reason."

112      With respect, I agree with her Honour that the RRT erred in thinking that a failure of the state to protect any particular social group of which Ms Khawar was a member was necessarily rendered irrelevant by the RRT's finding that she feared violence from her husband whose motivation resided in private, family considerations.

Chen

113      In Chen the High Court held that the Convention definition of "refugee" can be satisfied even though one cannot identify a persecutor who is motivated by "enmity" or "malignity" towards the particular social group, its members or their unifying characteristic. The RRT had found that

"because [the appellant] was born outside the parameters of [China's] One Child Policy, [and] also, and perhaps primarily, because he was born of an unauthorised marriage",

he was what was known in China as a "black child". The RRT had also found that "black children" (or "hei haizi") were a particular social group for the purposes of the Convention, and that, as a "black child" in China, the appellant would be:

"denied access to food, education and to health care beyond a very basic level [and would] probably face social discrimination and some prejudice and ostracism."

The RRT had stated that the appellant faced a real chance of persecution in China "because of", but not "for reasons of", his membership of a particular social group, because the consequences which he would be likely to suffer would not result from "any malignity, enmity or other adverse intention towards him on the part of the [Chinese] authorities." Rather, in the RRT's view it would result from an intention "to penalise those who have children outside the approved guidelines."

114      In their joint judgment, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed as follows (at [32], [33]):

"[32] Once it is accepted that `black children' are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that that treatment is for a reason other than his being a `black child'. As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute. However, it has not been suggested that that is the position. Moreover, that is not the basis upon which either the tribunal or the majority in the Full Court dealt with the matter.

[33] As already indicated, the tribunal based its conclusion that the adverse treatment the appellant is likely to receive in China is for a reason other than his being a `black child' on its view that the Chinese authorities were not motivated by `enmity' or `malignity'. Where discriminatory conduct is motivated by `enmity' or `malignity' towards people of a particular race, religion, nationality, political opinion or people of a particular social group, that will usually facilitate its identification as persecution for a Convention reason. But that does not mean that, in the absence of `enmity' or `malignity', that conduct does not amount to persecution for a Convention reason. It is enough that the reason for the persecution is found in one or more of the five attributes listed in the Convention."

115      In an independent judgment, Kirby J also concluded (at [60]-[65]) that the Convention definition did not require "enmity" or "malignity" on the part of a persecutor.

116      If it could be said that Ms Khawar feared persecution in Pakistan as a member of a particular social group, such as "women in Pakistan" or "married women in Pakistan", it would follow from Chen that it would not be fatal to her application that neither her husband nor the state harboured feelings of "enmity" or "malignity" towards members of that group. But in Chen the High Court was not called upon to decide whether the appellant was a member of a particular social group or whether he faced a real chance of "persecution" in China as a member of it: the RRT had found that he faced a real chance of persecution in China as a member of the particular social group "black children". Both the joint judgment and the judgment of Kirby J referred to the these findings of the RRT in the appellant's favour.

117      Nothing said in Chen undermines the proposition stated in the well known passage from the judgment of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568 that in the Convention definition there is a " `common thread'  which links the expressions `persecuted', `for reasons of' and `membership of a particular social group' ". Indeed, in Chen, the joint judgment referred to that idea with approval (at 557) (as Dawson J had done in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 242). But Chen suggests a question: does it remain necessary that there be motivation of a persecutor adverse to members of the particular social group or to their unifying characteristic. Consistently with Chen, such motivation could be insisted upon only as an essential aspect of the definition's concept of "persecution" or "particular social group". In relation to the former, the joint judgment in Chen stated (at 561):

" ... from the perspective of those responsible for discriminatory treatment, [persecution] may result from the highest of motives, including an intention to benefit those who are its victims."

Accordingly, antipathy is not an essential element of "persecution". Persecution itself has no place in defining the expression "particular social group", although it may expose a public perception which creates a particular social group (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 263-266 per McHugh J).

118      Similarly, I think it clear that an adverse motivation is not a prerequisite to the existence of a particular social group: rather, the existence of the group is antecedent to whatever motivation gives rise to the persecutory conduct.

119      In the result, it seems to me in light of Chen that enmity, malignity or any other particular kind of antipathy is not essential to the notions of "a particular social group" or "persecution" or, as decided in Chen itself, the causal link invoked by the words "for reasons of."

120      It also seems to me to be consistent with the High Court decisions in this area to look for:

*    a "particular group" according to the perceptions of the society in question;

*    that is subjected to discriminatory treatment;

*    by being harmed in a sufficiently significant way;

*    in circumstances in which either it is impossible for a member of the particular social group to cease being a member of it or in which it would be inconsistent with respect for the member's human rights, that the Convention is intended to protect (see below), to require him or her to cease being a member of the group.

121      In my opinion the RRT's findings in Chen illustrate a proposition relevant to the resolution of the present appeal which I accept: that "persecution" can take the form of a discriminatory withholding by the state from the members of a particular social group of goods or services that the state provides to other persons. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 431 McHugh J stated:

" ... the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason."

122      Similarly, later, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, his Honour observed (at 258) that:

"Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group."

If a state had a policy of not making available to the members of a particular social group protection by the police that was available to other members of the society, that passive conduct of the state could amount to persecutory conduct in my opinion.

Persecution consisting of the conduct of the state alone in the present case

123      If the authorities in Pakistan routinely withheld from "women in Pakistan", or "married women in Pakistan", protection against violence by men or by their husbands (the RRT did not make any finding in this respect), I find it difficult to see why that denial of protection could not be persecution by the state "for reasons of" membership of a particular social group.

124      According to this approach to the present case, the persecutory conduct would be the state's systemic failure to protect the members of the particular social group in certain classes of situation. It would be irrelevant that the state was not motivated by feelings of enmity or malignity. The husband's motivation would be irrelevant: his violence would not be the persecutory conduct and would be relevant only as providing the occasion of an instance of persecution by the state.

125      The first two preambles to the Convention are as follows:

"Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, ..."

126      If it were found that the explanation for the discriminatory absence of protection was a pervasive view of the authorities, whatever its own explanation and genesis, that women deserved less fundamental rights and freedoms than others, it would be entirely in conformity with the purposes of the Convention that they should be protected as refugees.

127      It is important to note that Ms Khawar, through her representatives, made two lengthy written submissions to the RRT, one, dated 12 November 1998, prior to the hearing, and the other, dated 8 December 1998, after the hearing, addressing the issue whether the Pakistani authorities discriminate against women in terms of unequal status under the law and before the courts and by governmental and police inaction. The submissions quoted from such documents as the United States State Department Report on Pakistan for 1997 and 1998, Amnesty International Reports of December 1995 and March 1997 on Pakistan, the Human Rights Watch's Global Report on Womens' Human Rights of August 1995 and other documents. The case sought to be made on her behalf was that for various reasons there is a well established pattern of discrimination against women and in favour in men, and, in particular, an unavailability of protection of women against the violence of men, accepted and acquiesced in by those organs of the state that are charged with a protective role.

128      The RRT did not address this material because it took the view that all that mattered was that Ms Khawar feared violence from her husband; that this violence was motivated by private family considerations; and that the husband's motivation was not related at all to a unifying feature of any particular social group of which Ms Khawar was a member. For the reasons given earlier, I think that this approach was narrower than that required by the definition of "refugee" in the Convention.

129      According to this first understanding of the persecutory conduct (that of the state alone), her Honour was right to set aside the RRT's decision and to remit the matter to the RRT for consideration according to law.

Persecution consisting of the conduct of the husband and the conduct of the state in combination in the present case

130      A second and alternative approach is to regard the persecutory conduct as the combination of the husband's violence and the lack of state protection. This is the approach that was accepted by a four to one majority in the House of Lords in Islam. Ms Islam and Ms Shah were citizens of Pakistan. Both had suffered violence from their husbands in Pakistan after their husbands had falsely accused them of adultery. They were abandoned by their husbands and lacked any other male protection. They were condemned by their local community for sexual misconduct and feared that if they returned, they would suffer persecution in the form of physical and emotional abuse, ostracism, lack of protection by the authorities, and, possibly, stoning to death in accordance with Pakistani Sharia law.

131      Their Lordships were more concerned with the Convention definition's concept of "a particular social group" than with the causal link required by its words "for reasons of", but on that issue, Lord Steyn said (at 646):

"Given the central feature of state-tolerated and state-sanctioned gender discrimination, the argument that the appellants fear persecution not because of membership of a social group but because of the hostility of their husbands is unrealistic. And that is so irrespective whether a `but for' test, or an effective cause test, is adopted. In these circumstances the legal issue regarding the test of causation, which did not loom large on this appeal, need not be decided."

132      Lord Hoffmann thought there were two reasons for the persecution that the women feared. His Lordship stated (at 653):

"First, there is the threat of violence to Mrs. Islam by her husband and his political friends and to Mrs. Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the state to do anything to protect them. There is nothing personal about this. The evidence was that the state would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to be combined to constitute persecution within the meaning of the Convention. As the Gender Guidelines for the Determination of Asylum Claims in the U.K. (published by the Refugee Women's Legal Group in July 1998) succinctly puts it (at p. 5): `Persecution = Serious Harm + The Failure of State Protection.'"

133      His Lordship proceeded to give the following analogy (at 653-654):

"Suppose oneself in Germany in 1935. There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question `Why was he attacked?' would be `because a competitor wanted to drive him out of business.' But another answer, and in my view the right answer in the context of the Convention, would be `he was attacked by a competitor who knew that he would receive no protection because he was a Jew.'"

134      On the question of causation, Lord Hope of Craighead agreed with Lords Steyn and Hoffmann while Lord Hutton agreed with Lord Steyn. Lord Millett dissented.

135      Accordingly, while not essaying a "definition" of the words "for reasons of" in the definition, the majority accepted that a "realistic" approach to causation would treat those words as satisfied by a pattern of violence for which the immediate motivation was personal, combined with denial of state protection.

136      With respect, I think that their Lordships' understanding of the kind of causal link called for by the definition is both "realistic" and in conformity with the purposes of the Convention. The definition does not, in terms, require identification of the persecutor or persecutors. Once it is accepted, as it has been (see, for example, Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 (FCA/FC)), that the definition may be met even though a single persecutor has more than one reason for persecuting, there is no difficulty, I suggest, in accepting that persecution may consist of the effect of the conduct of two or more persons, only one of whom may be moved by a Convention reason.

137      In the present case, there are possibilities which, in my view, would have satisfied the Convention definition but which the RRT did not explore because it put the state's lack of protection to one side as irrelevant in favour of only the immediate motivation of the husband:

*    That Ms Khawar feared violence from her husband and his brother for reason of exclusively personal, family considerations followed by the objective fact of lack of state protection for reason of her membership of a particular social group;

*    That Ms Khawar feared violence from her husband and his brother for reason of personal, family considerations and the husband's and brother's knowledge that the state would not protect her from them for reason of her membership of a particular social group ("what did you think the police could do to us?").

138      According to this alternative identification of the persecutory conduct also, her Honour was right to set aside the RRT's decision and to remit the matter to the RRT for consideration according to law.

The "attitude" or "motivation" of the persecutor since Chen

139      In a much cited passage in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (FC), Burchett J stated as follows (at 568):

"In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind. That concept flows through the separate elements of the definition. The well-founded fear of which it speaks is a fear of `being persecuted'. Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word `persecuted', the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is `membership of a particular social group'. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon `membership of a particular social group'. The link between the key word `persecuted' and the phrase descriptive of the position of the refugee, `membership of a particular social group', is provided by the words `for reasons of' - the membership of the social group must provide the reason. There is thus a common thread which links the expressions `persecuted', `for reasons of', and `membership of a particular social group'. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase `for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group." (my emphasis)

140      In Chen, Gleeson CJ, Gaudron, Gummow and Hayne JJ quoted (at [34]), with apparent approval, the following statement in the judgment of the primary Judge, French J:

"The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted. But although the words `enmity' and `malignity' appear in the dictionary definitions of persecution and in some of the passages in the judgments, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group. Motivation connecting persecution to the relevant attribute is sufficient. Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects. There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept. The attribution of subjectively flavoured states such as `enmity' and `malignity' to governments and institutions risks a fictitious personification of the abstract and the impersonal." (my emphasis)

141      As noted earlier, in my opinion both the joint judgment and that of Kirby J in Chen show that it is an error of law to insist upon the presence of any particular adverse attitude, emotion or state of mind on the part of the persecutor. But clearly the motivation for the persecutory conduct must be something perceived about the particular social group. If it is necessary to say so, I would hold that a state perception of a particular social group as "inferior", "less deserving" or "second class" by reference to the rest of society, and, in particular, a view of members of the group as not possessing the same human rights as the rest of society or, if possessing them, as not entitled to have them enforced and protected to the same extent as the rest of society, would constitute a motivation that would be entirely consonant with the Convention's definition and preamble. In the present case, there was evidence before the RRT on which it might have found that "women in Pakistan" or "married women in Pakistan" are so regarded and also that such a view of Ms Khawar formed part of the attitude of her husband and his family and the police, that caused them to act towards her as they did.

"The principle of surrogacy": surrogate protection

142      In the recent case, Horvath v Secretary of State for the Home Department, unreported, 6 July 2000, the House of Lords was required again to consider the issue of lack of state protection in a case of persecution by a non-state agent. The appellant was a citizen of Slovakia. He lived there with his wife and other members of his family. They were Roma (gypsies) and were persecuted by "skinheads". He alleged that the state, through its police service, had failed to protect him from them.

143      The Immigration Appeal Tribunal concluded that while the appellant had a well founded fear of violence by skinheads, this did not amount to "persecution" because the appellant had not shown that he was unable, or through fear of persecution, unwilling, to avail himself of the protection of the state. The Court of Appeal dismissed his appeal from the Tribunal's determination.

144      Their Lordships' judgment on the appellant's further appeal to the House of Lords was delivered by Lord Hope of Craighead. His Lordship found it necessary to address only one question which the parties had identified as calling for determination. That question was:

"[D]oes the word `persecution' denote merely sufficiently severe ill-treatment, or does it denote sufficiently severe ill-treatment against which the state fails to afford protection?"

145      His Lordship stated that the Convention purpose which was of paramount importance for solution of the problem raised was that found in "the principle of surrogacy":

"The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention in his own country to turn for protection to the international community."

146      His Lordship referred to suggestions by Professor J C Hathaway in The Law of Refugee Status (Butterworths 1991) that persecution may be defined as "the sustained or systemic violation of basic human rights demonstrative of a failure of state protection" (at 104-105) and that

"Persecution is most appropriately defined as the sustained of systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community."

147      His Lordship thought that the lack of state protection had a part to play in the application of both limbs of the definition: the first "well-founded fear ..." limb, and the second "unable or ... unwilling" limb. Accordingly, he stated:

"... in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element."

148      qHorvath differed from Islam and the present case in that in Horvath the harassment was Convention based (being directed against the Roma) whereas in Islam and the present case the violence was not directed against all Pakistani women or all Pakistani married women but only against the particular wife. It is noteworthy that Islam was not referred to in Horvath. Horvath is, nonetheless, of relevance for its emphasis on surrogate protection as providing the principle that unifies the various elements of the definition of "refugee". Their Lordships' analysis is to the effect that in a case of persecution by non-state agents, it is not only permissible, but necessary, to find a well-founded fear of lack of state protection in order to find even the first limb satisfied. This view is consistent with both approaches to the present case that I outlined earlier.

Other matters

149      Senior counsel for Ms Khawar correctly observes that the difference between the two approaches outlined earlier makes no difference to the result of the appeal in the present case: the RRT did not consider the case according to either approach. In another case, the difference in approach might yield a different result. In argument, the hypothetical illustration was offered of a natural disaster, such as flood, fire, famine or volcanic eruption, which devastates a community, leaving its members facing starvation, disease and death. If the state withheld all aid from those members, and only from those members, of the society who belonged to a particular race, adhered to a particular religion, were of a particular nationality, held certain political opinions or were members of a particular social group, persecution of those persons for a Convention reason would surely be established. Yet in such a case there would not be positive action by anyone, even a non-state agent, discriminating against those persons.

150      The hypothetical example reinforces my views

*    that the first of the two approaches that I outlined earlier is the preferable one; and

*    that it is inappropriate to insist that some positive conduct be present before the Convention definition can be brought into play.

151      Senior counsel for the Minister submitted that decisions of single Judges of this Court were contrary to the views expressed by the primary Judge. He referred to Basa v Minister for Immigration and Multicultural Affairs [1998] FCA 830 (Sackville J) and Minister for Immigration and Multicultural Affairs v Ndeje [1999] FCA 783 (Weinberg J).

152      Basa was unlike the present case. A Filipino woman feared violence from a former boyfriend. The RRT was not satisfied that she feared him "by reason of her membership of a particular social group, namely, Filipino women" and found that her fear was of infliction of harm arising from the previous relationship. Most importantly, the RRT found that "there was no real chance that if the applicant told the police the full extent of her fears, the authorities would not protect her." Sackville J held that the material before the RRT was sufficient to support both findings. His Honour remarked:

"The applicant did not face persecution because she was a Filipino woman, but because of the unfortunate circumstances of her relationship with Mr S and his apparent propensity for violence."

Earlier, his Honour had stated:

"The harm feared must be, at least in part, by reason of membership of that particular social group. Furthermore, in order to constitute persecution, the harm must emanate from the authorities in the country or, alternatively, the government must fail or be unable to protect the applicant from persecution." (my emphasis)

153      I do not think that anything said by Sackville J in Basa is inconsistent with the views I have expressed. It must be recalled that Ms Khawar's claim, not yet determined by the RRT, is that, to adopt Lord Hoffman's words in Islam (at 655), there is

"... institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the state."

154      Ndeje concerned a married Tanzanian woman who claimed she had been the victim of serious and sustained violence at the hands of her husband. She claimed that in Tanzania, marital violence inflicted by husbands upon their wives was considered normal and that there was no point in complaining to the authorities because they would take no action. She claimed that the authorities would support her husband in whatever course he took and that as he was a professional man and a former senior bureaucrat, he would be able to pay bribes to the police and the judiciary. She claimed that if she sought to leave him, she would be ostracised, unable to find employment and dishonoured by her own family for having failed to comply with Tanzanian custom. Moreover, she said that if she were required to return to Tanzania, her husband would take revenge upon her for having left him and that he had threatened to kill her once they were back in Tanzania.

155      The RRT thought that the applicant was a member of a particular social group, namely married women in Tanzania, and that such women were persecuted by being denied by the state the fundamental rights and freedoms enjoyed by others in Tanzania, and by the complicity of the state in the infliction of violence by their husbands. In a careful judgment, Weinberg J dealt separately with the attribution of responsibility to Tanzania for Convention-related persecution and the finding that Tanzania was complicit in the husband's persecution. His Honour stated as follows:

"The attribution of responsibility to Tanzania for Convention related persecution

..........................................................................................................

46  I am unable to accept the respondent's submission that the conclusion reached by the RRT that the State was the source of the Convention related persecution was properly open to it. The respondent's case before the RRT was that her husband, and not the State, was the source of her `well-founded fear of being persecuted'. The RRT did not make that finding.

47  There is no authority of which I am aware which suggests that a State may be found to have engaged in persecution for a Convention related reason merely because it is unwilling, or unable, to protect its citizens from acts of violence which are not themselves, in any way, Convention related. Certainly McHugh J did not go so far as to suggest this in the passage cited (at 258) above where his Honour spoke of inaction by the State in the face of `persecution by private individuals or groups'. In context, his Honour there meant persecution for a Convention related reason.

48  The very concept of `persecution', viz `the action of persecuting with enmity or malignity' - The Oxford English Dictionary; `to pursue with enmity and injury' `to harass, worry, importune' - Concise Oxford Dictionary, suggests something actively done by a persecutor, and not mere inaction on the part of another who is in a position to prevent it.

49            Notwithstanding the suggestion in these and other definitions of the term `persecution' that only positive acts are embraced within that term, inaction in the face of Convention related violence may amount to Convention related persecution if that inaction is motivated by factors which are Convention related - Applicant A (supra) at 258 per McHugh J. Failure by the State to prevent Convention related violence, albeit violence which emanates from a non-State source, such as a private individual or group, will be sufficient, in such circumstances, to give rise to a successful claim to refugee status. The State may properly be viewed as complicit in that Convention related violence.

50  That is not, however, the situation in the present case. Tanzania itself was found by the RRT to be the source of the respondent's `well-founded fear of being persecuted'. Absent a finding that the respondent's husband was motivated in his violence towards her by one or more of the matters set out in Art 1A(2) of the Convention, there was no evidence or other material before the RRT capable of giving rise to that conclusion.

51  Having found that the applicant has made good this first ground of review it is not strictly necessary that I deal with the remaining grounds in support of the application. As this matter is to be remitted to the RRT for reconsideration, however, I have thought it appropriate to touch briefly upon these remaining grounds as well.

The complicity finding

52  I accept the applicant's contention that it was not open to the RRT to find that the complicity of the State in the non-Convention related violence of the respondent's husband was a basis upon which it could be satisfied that she would face Convention related persecution if required to return to Tanzania.

53            `Complicity' by the State in the acts of another cannot, in my opinion, amount to Convention related persecution unless those acts of that other have the character of persecution which is Convention related.

54            Complicity is a form of accessorial liability. In the complicity situation there is only one offence, though there will be two or more offenders. If the principal offender has not committed the relevant offence, the accessory cannot, in ordinary circumstances, be convicted of complicity in that offence - Osland v The Queen (1998) 159 ALR 170; Surujpaul v The Queen [1958] 1 WLR 1050; Walsh v Sainsbury (1925) 36 CLR 464 at 477; Mallan v Lee (1949) 80 CLR 198 at 205, 210; see generally P Gillies, The Law of Criminal Complicity (1980), LBC at 138-148." (my emphasis)

156      Of course, Ndeje preceded Chen. Chen shows that while enmity or malignity of a persecutor directed against the members of a particular social group on account of their unifying characteristic can be relevant to satisfaction of the Convention definition, it is not necessary for that purpose. With respect, I do not think that certain aspects of his Honour's approach in Ndeje can now stand with Chen.

157      Reference may be made to Fatin v Immigration and Naturalisation Service 12 F 3d 1233 (3rd Cir, 1993), an opinion of the United States Court of Appeals, Third Circuit. The petitioner, a native and citizen of Iran, had entered the United States at the age of eighteen years as a non-immigrant student. She attended high school and college. In May 1984, apparently while still attending college, she applied for political asylum. She said she did not wish to return to Iran because she did not wish to assume what she perceived to be the subordinate role of women in Iran. She referred to requirements to practise the Muslim religion, the wearing of the chador or traditional veil, and the unequal treatment of the sexes.

158      The Court noted that the particular social group on which the petitioner relied was not "Iranian women" but "Iranian women who refuse to conform to the government's gender-specific laws and social norms." The Court held that the petitioner's difficulty was that her testimony had not established that her beliefs were "so fundamental to [her] identity or conscience that [they] ought not be required to be changed": Matter of Acosta 19 I & N Dec 211 at 234. Rather, the Court said that the most her testimony showed was that she would find the wearing of the veil objectionable and would seek to avoid compliance if possible.

159      I find nothing in Fatin inconsistent with the views I have expressed. Unlike Ms Fatin, Ms Khawar has already suffered persecution and the circumstances that gave rise to it (her being a female and married to her husband) cannot be changed by her in order to escape it.

160      Finally, it seems right to say that the fact that the police have failed to protect a woman from her husband's violence will not necessarily provide the bridge between the state and privately motivated harassment. Firstly, the failure may be atypical. Secondly, it may be due to the attitude or ineptitude of a particular police officer. Thirdly, it may be due to systemic inefficiency. Fourthly, the police may be reluctant, for good or bad reason, to become involved in a particular domestic dispute. Unfortunate as the woman's position would be, these various explanations (and perhaps others) would serve to displace any suggestion that she was a refugee as defined. Something more is required. In my view, that "something more" would be satisfied at least by a sustained or systemic absence of state protection for members of a particular social group attributable to a perception of them by the state as not deserving equal protection under the law with other members of the society, whatever the origin or explanation of that discriminatory perception might be.

Conclusion

161      In my view, the appeal should be dismissed with costs.

I certify that the preceding seventy- eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 23 August 2000

Counsel for the Appellant: Mr R Tracey QC and Mr J Smith

Solicitor for the Appellant: The Australian Government Solicitor

Counsel for the Respondents: Mr J Basten QC

Solicitor for the Respondents: Coelho & Coelho

Date of Hearing: 29 May 2000

Date of Judgment: 23 August 2000

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