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Hunter, Catherine --- "Khawar and Migration Legislation Amendment Bill (No 6) 2001: Why Narrowing the Definition of A Refugee Discriminates Against Gender-related Claims" [2002] AUJlHRights 8; (2002) 8(1) Australian Journal of Human Rights 107

Khawar and Migration Legislation Amendment Bill (No 6) 2001: Why narrowing the definition of a refugee discriminates against gender-related claims

Catherine Hunter[*]


In April this year, the High Court of Australia decided in Khawar that a failure by the applicant’s state to protect her from domestic violence was sufficient to meet the requirements of the definition of a refugee. It was decisions such as this that prompted the Minister for Immigration and Multicultural Affairs to introduce legislation to narrow the interpretation of the definition in Australian courts and tribunals. This article illustrates firstly, that this interpretation is in line with international practice and the intentions of the Refugee Convention definition’s drafters. Secondly, it shows that the new legislation is likely to discriminate against gender-related refugee claims.

On 11 April 2002, the High Court ruled against the Minister for Immigration and Multicultural Affairs in MIMA v Khawar, a refugee case in which a woman fled domestic violence and the failure of her government to protect her. Mr Ruddock raised the Federal Court appeal last year during discussion in Parliament. It was for him a reason for narrowing the definition of a refugee. He claimed that the definition contained in the Convention Relating to the Status of Refugees (the ‘Refugee Convention’ to which Australia is a signatory) has been interpreted too broadly in Australian courts and tribunals.

As a result, Migration Amendment Bill (No 6) 2001 (Bill No 6) was introduced to ‘restore the application of the Australia to its proper interpretation’ (Ruddock 2001: 1). This Bill, passed on 26 September 2001, attempts to limit the ability of decision-makers to apply the refugee definition only to those that fall within a strict and narrow interpretation. Clearly the intention of the Minister is that a case such as MIMA v Khawar, which involves a more highly evolved understanding of persecution and state protection and has developed in response to gaps that have appeared in the Convention’s protection over the fifty years since its creation, will fall outside the definition.

Gender-related claims, in particular, tend to be excluded by a narrow reading. While the definition was initially understood to apply only to forms of persecution that occur in the public sphere and that are perpetrated by the state, gender-based persecution commonly involves non-state actors in the private sphere (Anker 2000: 2). My aim in this article is to draw attention to the ways in which measures such as Bill No 6 have a disproportionate effect on gender-related claims.

To this end, I will discuss the broad issue of the Minister’s criticism of our courts’ treatment of the definition of a refugee. I will respond to this general point from the perspective of gender-related cases. As an illustration of the Minister’s approach to refugee claims, I will document briefly how the Bill No 6 changes specifically affect those involving gender issues.

The Refugee Convention and gender

Firstly, it is necessary to explain Australia’s obligations towards refugees under international law. I will discuss the definition of a refugee adopted in Australia, and why it does not contain a specific provision for gender-related persecution. It will then be possible to examine the reasons why it is necessary, according to international human rights law, to interpret the definition in a gender-sensitive manner.

Australia ratified the Refugee Convention in 1954 and the Protocol Relating to the Status of Refugees in 1973. As such we have agreed to offer protection to all those asylum seekers who arrive in Australia and are proven to be refugees according to the definition set out in the Convention and to whom Australia owes ‘protection obligations.’[1] This definition is reproduced verbatim in the Article 1A(2) of the Migration Act 1958 (Cth) (Migration Act) and is as follows:

...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 their nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former residence as a result of such events, is unable or, owing to such fear, unwilling to return to it.

The grounds upon which it is possible to claim asylum do not explicitly include gender. The lack of a specific ground has caused difficulties in the application of the definition to gender-related claims (Kourula 1997: 131). Where such claims also involve other reasons for persecution, it has been possible to argue on the basis of race, religion, nationality, or political opinion. Where, however, gender has been the sole reason for persecution, the ground of ‘membership of a particular social group’ has frequently been applied.

The absence in the Convention of protection from gender-related persecution is the result of the historical and cultural conditions in which it was created (Kourula 1997: 131). Drafting took place in 1951at a time when international organisations were largely the domain of men. Charlesworth, et al (1991: 625) argue, ‘Long-term domination of all bodies wielding political power nationally and internationally means that issues traditionally of concern to men become seen as general human concerns, while “women’s concerns” are relegated to a special, limited category.’

In the case of the Refugee Convention, the grounds on which refugee status can be granted are of a public, political nature and correspond to those with which its male drafters were familiar. In contrast, women are much less likely to be involved in ‘...politics (as it has been traditionally been defined) or the publicly active religious, racial, nationalistic or social groups whose persecution is well-known’ (Castel 1992: 40). While some women flee persecution that is not gender-specific, others flee persecution that ‘targets them as females. Examples of such persecution may include rape, sexual torture, female genital mutilation, severe discrimination, forced abortion or forced sterilisation’ (UNHCR 1997: 81).

The Convention was not intended to distinguish between male and female refugees. However, if its provisions, in application, fail to be sensitive to the types of persecution typically experienced by women, then it must be considered to be discriminatory. The challenge, then, is to interpret the Convention’s provisions in a non-discriminatory way so as to ensure its protection is available to all (Bacon & Booth 2000: 139).

We are committed to a non-discriminatory approach. For example, the Universal Declaration of Human Rights (the Declaration) states that everyone is entitled to its rights and freedoms ‘...without distinction of any kind...’(Article 2) and to equal protection against violations of the Declaration (Article 7). However, many women are denied the protections of the Refugee Convention through its insensitivity to gender-related claims. By not protecting such women, United Nations member states are violating one of their obligations under the Declaration (Cipriani 1993: 542). This occurs despite the fact that the Convention’s preamble specifically mentions this provision of the Declaration.

Australia is a signatory not only to the Declaration, but also to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and to the Convention on the Elimination of All Forms of Discrimination Against Women. Each of these treaties specifically prohibits discrimination on the basis of gender. As such, our interpretation of the Refugee Convention must not discriminate against gender-related claims.

Over the last decade, the ‘women’s rights as human rights’ movement has become increasingly accepted amongst academics, the United Nations system, non-governmental organisations, and some governments. This approach developed as a response to the realisation of ‘the need for the international legal system to accommodate and extend protection to female victims of human rights abuses’ (Bunch 1990: 486). Support for this approach internationally is clear from developments in the human rights field indicating a general shift in the international community’s understanding of gender issues.

The United Nations High Commissioner for Refugees (‘the UNHCR’), the body set up to administer the protections of the Convention, takes such an approach (UNHCR 1950). The UNHCR’s Executive Committee referred to ‘...the principle that women’s rights are human rights...’ (UNHCR 1997: 79). ‘Women’s human rights’ arguments are further evidence that our approach to the Refugee Convention must not discriminate against gender-related persecution.

Migration Legislation Amendment Bill (No 6) 2001

In order to examine the effects of Bill No 6 on gender-related claims, we must first consider the Bill itself. I will discuss here the aims of the Bill, as set forth in the Migration Legislation Amendment Bill (No 6) 2001 Explanatory Memorandum (the Explanatory Memorandum) (Ruddock 2001). The specific provisions of two sections will then be set out to enable discussion later.

Bill No 6 would appear to have two purposes. Firstly, as already noted, the Bill is intended to restore a narrow interpretation of the refugee definition by Australian decision-makers. As stated by the Explanatory Memorandum, ‘Over recent years the interpretation of the definition of a refugee by various courts and tribunals has expanded the interpretation of the definition so as to require protection to be provided in circumstances that are clearly outside those originally intended.’ The new provisions are aimed to ‘restore the application of the Convention... in Australia to its proper interpretation’ (Ruddock 2001: 1).

Much of the Explanatory Memorandum appears to work from the position that asylum seekers are abusing the present processes. The reason for one provision of the Bill is stated as to ‘...prevent members of families pursuing claims for protection one after the other – dragging on resolution of their status for years.’ The second purpose of the Bill is to ‘...address these attempts to misuse onshore protection processes...’ as ‘[i]n recent years there have been increasing numbers of attempts to misuse Australia’s onshore protection processes to delay or frustrate removal by people who have no need for Convention protection’ (Ruddock 2001: 1).

The sections of Bill No 6 that will be discussed in detail later are as follows:

1. Subsection 48A(2)

Bill No 6 introduces new paragraphs 48A(2)(aa) and 48A(2)(ab) into s 48A(2) of the Migration Act. This extends the bar on repeat claims to include applicants whose initial claim was as a family member of a primary applicant.

2. Section 91R

The Bill inserts new Section 91R, which relates to the definition of ‘persecution,’ into the Migration Act. This section states that refugee status can only be granted if:

a) the Convention reason (that is, race, religion, particular social group or political opinion) is the essential and significant reason for the persecution;
b) the persecution involves serious harm; and
c) the persecution involves systematic and discriminatory conduct.

Further, examples are provided of what may constitute ‘serious harm’:

a) a threat to life or liberty;
b) significant physical harassment;
c) significant physical ill-treatment;
d) significant economic hardship that threatens the person’s capacity to subsist;
e) denial of access to basic services, where such denial threatens the person’s capacity to subsist; and
f) denial of the capacity to earn a livelihood, where such denial threatens the person’s capacity to subsist.

The effects of Bill No 6 on gender-related claims

I will now focus on these two examples of changes to the Migration Act contained in Bill No 6. They will be examined in the light of issues specific to gender-related persecution. Their likely effects on the ability of decision-makers to apply the refugee definition to gender-based claims will be assessed.

Subsection 48A(2)

Through the workings of ss 36(2) and 48A of the Migration Act, applicants who have already had a protection visa application refused are prevented from making a second claim. Bill No 6 contains a provision stating that this rule applies to people whose rejected claim was as part of a family group who now wish to apply on their own merits. This change of the law is despite a Full Federal Court ruling in Dranichnikov v MIMA last year in which s 36 and s 48A were determined not to apply in this situation.

The problem with the new provision is that in most family groups it is assumed that the primary claim will be appropriately based on the experiences of the male ‘head of household’ and the wife and children are allocated secondary, dependent status. The success of the secondary applicants depends upon that of the male, primary applicant. It often happens that the validity of the woman’s own claim to refugee status is not considered until her husband’s claim is rejected (DIMA 1996:10).

The failure of women to make a primary claim in the first instance can occur for two reasons. One of these reasons is procedural. Asylum seekers are often unaware of the grounds on which they can make a refugee claim, and lawyers and decision-makers often assume that the male applicant’s experiences are the appropriate basis. The woman is rarely informed of the possibility of applying on her own merits, or applying on gender-related grounds (DIMA 1996: 10).

Another reason relates to the consequences of the applicants disclosing their experiences in the presence of their husbands, families, other members of their community, or male lawyers or officers. In many cultures, women who have been subjected to rape or sexual violence are ostracised by their husbands and communities (DIMA 1996: 10). Domestic violence is condoned by society and the state in many places, and applicants fear reprisal from their husbands (DIMA 1996: 18).

While the rationale for this provision is to prevent repeat claims dragging on for years, and there is a clear need for the speedy resolution of claims, the ends do not justify the means in this case. The s 36(2) changes are likely to result, in some cases, in the return of asylum seekers before they have had their claims fully determined. This practice is termed refoulement and deemed unacceptable under Article 33 of the Convention. To reduce the necessity for repeat claims, asylum seekers should be informed of the grounds, including those relating to gender, on which they may make a claim. Further, an appropriate environment for questioning must be provided, where necessary using female officers, and without the presence of husbands, members of family or community (DIMA 1996: 11).

Section 91R

Section 91R deals with ‘persecution’ in the Migration Act. The Explanatory Memorandum states that two trends in decision-making relating to persecution have taken interpretation of the Convention beyond that intended by its drafters. The first of these relates to the level and types of harm accepted to constitute persecution. The second involves the nexus to a Convention reason (DIMA 1996: 1).

Level and types of harm

The Explanatory Memorandum states that the level and types of harm that have been accepted by decision-makers is, in fact, insufficient to constitute persecution (Ruddock 2001: 1). The addition of s 91R means that persecution must now meet the requirements of ‘serious harm’ and ‘serious and discriminatory conduct.’ However, when defining ‘serious harm’ we must take into account gender differences.

Such gender differences occur where circumstances that amount to less than persecution for a man, have far more serious consequences for a woman. This is often the case in societies where women face social or religious restrictions. Additional hardship may then reach the level of persecution. For example, persecution which results in a man being forced to leave his home and family to live in a new part of his country may not be considered to be persecution. However, for a woman who is not permitted by her society to live alone, to rent property, or to earn a living, the additional hardship of being forced to leave her home and family may, in combination, amount to persecution (DIMA 1996: 19).

As set out earlier, s 91R also sets forth a list of the types of harm that would qualify as persecution. The danger in setting forth examples, particularly those that focus on physical hardship, is that it may result in other types of harm being excluded which are valid but of a different nature.

Tying the ‘nexus of the persecution’ to a ‘Convention reason’

The second trend identified by the Explanatory Memorandum as taking the interpretation of persecution beyond the Convention’s intention involves tying the nexus of the persecution to a Convention reason. There is very often more than one reason for a refugee to flee their homeland. The new s 91R requires that where there are a number of reasons, the essential and significant reason must be Convention-related.

While on its surface this appears reasonable, in the present circumstances where gender-related claims are contentious, it creates difficulties for such claims. To avoid having the claim appealed, lawyers and decision-makers will, at times, argue an aspect of a case that does not involve gender and that, while valid, may not be the primary reason (personal communication 2001). For example, in cases involving women who fear persecution for their resistance to social mores, there are aspects of the woman’s decision to flee that are based on the fact that she is a woman, and there are those that are political (IRB 1993: 4). Decision-makers are likely to focus on the political aspect, as the gender-related reason is likely to be rejected. Until gender-related decisions are no longer controversial, this provision will disproportionately affect the claims of women applicants.

Interpretation of the Refugee Convention definition of a refugee

The Minister argues that the interpretation of the definition of a refugee in courts and tribunals in recent years has been too broad. A primary aim of Bill No 6 is to compel decision-makers to adopt a more narrow interpretation. However, it is hard to see this as a return to the ‘correct’ interpretation. More acceptable would seem to be an ‘evolutionary’ approach to the Convention’s provisions, in which the definition would be allowed to develop in response to changing circumstances.

While it is the prerogative of states parties to adopt an interpretation of the definition of a refugee, this is in no way to be undertaken in isolation. The Vienna Convention on the Law of Treaties (the Vienna Convention) states, in Article 32, that ‘[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion...’ There is debate surrounding the intentions of the drafters of this convention, however, guidance can be taken from the UNHCR. They have said, ‘We in UNHCR regard it as our responsibility... to foster an interpretation of the Convention that is relevant to the current context. This means working towards an interpretation of the Convention that is gender-sensitive...’ (Tadjbakhsh 2001: 184)

Influential commentators including Taylor and Cipriani have argued for a liberal interpretation of the Convention’s provisions based on the humanitarian motives of the drafters. Taylor (1993: 313) states that the central purpose of the Convention is one of protecting the individual. Therefore, ‘...the ‘contract’ itself should be construed liberally in favour of its beneficiaries.’ Women are among its beneficiaries.

Cipriani (1993: 542) says that the many of the states involved were anxious to ensure future, unforeseen types of persecution were provided for. She says there was recognition by states that the definition might be broadened in the future. ‘Clearly, many countries in the working group foresaw a time when the definition of a refugee would have to be expanded to meet new problems that might arise.’

As human rights are not static but develop over time, human rights treaties must also be open to such evolution (Pace 1997: 3). Much has changed since the time of the Convention’s drafting. Our understanding of the public/private divide, of persecution, and of women’s rights has developed. ‘Such social and conceptual developments demand an evolutionary approach to the interpretation of the Refugees Convention, to enable account to be taken of social change and of discriminatory circumstances which may not have been obvious to the delegates when the Refugees Convention was framed’ (Bacon & Booth 2001: 139).

State practice

The Vienna Convention also states, in Article 31, that interpretation of human rights treaties should take into account ‘subsequent practice in the application of the treaty...’ The interpretation of the Refugee Convention definition in Australia should be in line with that in other signatory states. However, the aims of Bill No 6, to narrow interpretation, are out of step with the direction being taken in other signatory states.

Grant of refugee status on the basis of gender-related persecution is considered by the Minister to be ‘broadening’ the definition. This is clear from his reaction to the High Court decision in MIMA v Khawar. His representative said to the Sydney Morning Herald, ‘If the courts have broadened out the definition [of a refugee] it’s something the Parliament might have to look at’ (Clennell 2002: 1).

But the grant of refugee status on gender-related grounds is, in fact, in line with practice amongst other signatory states. Over the past decade, states, including Australia, have been working towards the adoption of gender-sensitive laws and procedures. The UNHCR’s Executive Committee recommended that states parties develop guidelines to ‘...recognise as refugees women whose claim to refugee status is based upon a well-founded fear of persecution for reasons... including... sexual violence or other gender-related persecution’ (EXCOM 1995: 1).

In response, the Canadian Immigration and Refugee Board developed Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution in 1993 (IRB 1993). These were the first national guidelines to formally recognise that women fleeing persecution because of their gender could be recognised as Convention refugees (Crawley 2001: 13). The United States Immigration and Naturalization Service’s Considerations for Asylum Officers Adjudicating Asylum Claims from Women followed in 1995 (INS 1995).

In 1996 the European Parliament instructed member states to adopt guidelines on women asylum seekers in line with the UNHCR’s recommendation. It was emphasised that ‘ is crucial that sexual violence be recognised as a form of torture, particularly given the use of rape as a weapon of war and the cultural traditions of certain countries which involve gender persecution’ (EP 2001: 1996). The United Kingdom introduced Asylum Gender Guidelines in 2000 (IAA 2000) and most recently, the Swedish Migration Board launched Gender-Based Persecution: Guidelines for Investigation and Evaluation of the Needs of Women for Protection in 2001 (MB 2001).

In Australia, the Department of Immigration and Multicultural Affairs drafted Guidelines on Gender Issues for Decision-Makers in 1996 (DIMA 1996). These were based closely on the Canadian Guidelines (Crawley 2001: 13). It is clear that in terms of policy directions for decision-makers on the issue of applying the refugee definition to gender-related claims, Australia is closely in line with practice in other states.

Was the Minister correct in his assessment that Australian courts are out of step with the conventional approach? To answer this question, a comparison of the interpretations adopted in various countries is necessary. The major areas of contention for applying the definition in gender-related claims are the definition of ‘persecution’, the involvement of the state in the persecution, and the nexus of the persecution to a Convention ground. I will undertake a brief survey of current interpretations in these three areas in a sample of states.

The definition of ‘persecution’

Bacon and Booth have found parallels in the interpretation of persecution in the United Kingdom, the United States of America, Canada, New Zealand and Australia. In each of these jurisdictions the main themes in defining persecution are currently:

Non-state actor persecution

In Australia, there are two contrasting approaches to the role of the state in persecution. The more narrow of these interprets the definition as requiring the state to be the agent of persecution. This interpretation was applied in Ndege. The second, less narrow approach, adopted in Khawar v MIMA, interprets the involvement of the state as including persecution by a non-state actor, provided the state is unable or unwilling to offer effective remedy (Bacon & Booth 2000: 155-6).

The UNHCR and Canadian Guidelines and the US Considerations adopt the latter, less narrow approach of Khawar v MIMA. They each state that while refugee status may be granted where the agent of persecution is the state, it is also possible for the persecutor to be a non-state actor where the state is unable or unwilling to provide protection.

Particular social group

The most contentious part of gender-related decisions involves the ‘particular social group’ ground, partly because the ground itself is the subject of so much debate. It has been applied, in gender-based claims, to groups including ‘women’ and ‘women from Pakistan’ and ‘women who resist social mores’. Jurisprudence in the area is diverse and continues to evolve (UNHCR 1997: 105).

The most liberal interpretation of ‘particular social group’ by a signatory state appears to be that applied in Canada. The Supreme Court of Canada’s approach is to interpret the ground in line with anti-discrimination principles inherent in civil and political rights. In a landmark case, Canada (AG) v Ward, the Court devised three categories for the grant of ‘social group’ and stated that the first would embrace gender-related persecution (Connors 1997: 124-6).

Social groups have been accepted in Canada as including, ‘Chinese women with more than one child who faced forced sterilisation,’ ‘Trinidadian women subject to wife abuse,’ ‘single women living in a Moslem country without the protection of a male relative,’ unprotected Zimbabwean girls or women subject to wife abuse’ and ‘Zimbabwean women or girls forced to marry according to customary laws of kusvavura and lobolo’ (Connors 1997: 124-6).

In the United States, the landmark case was Kasinga. The Board of Immigration Appeals (BIA) decided that female genital mutilation had been imposed on the applicant because of her membership in a ‘social group’ ‘...defined by the immutable or fundamental characteristics of gender, ethnicity, opposition to the practice, and the fact of having “intact genitalia.”’ Following Kasinga, while decisions were not entirely consistent, asylum claims were granted to women fleeing gender-related persecution (Musalo & Knight 2001: 54).

In Matter of R-A-, the United States BIA decided contrary to the understanding of ‘social group’ established in Kasinga. However, this decision was finally overturned by the Attorney-General (as discussed later). Since then, another claim on the basis of domestic violence because of membership in a ‘particular social group’, Aguirre-Cervantes v INS, was granted in 2001.

The human rights approach taken in Canada has also been applied in New Zealand. ‘Social group’ is interpreted in the light of anti-discrimination and human rights concepts. For example, an Arab/Iranian woman, the victim of abuse by male family members and with opinions in contradiction to the Iranian Government, was held to be a member of a particular social group in Re MN. ‘Her values, beliefs and convictions were such as to be shared by other women in Iran and it would be wrong to require her to change these views as they went to the very basis of her fundamental civil and political rights, her identity, dignity and existence. The social group to which she belonged was held to be cognisable by herself and others who would see themselves as part of this social group and cognisable to the Iranian State and authorities’ (Connors 1997: 126).

The decisions in the joined United Kingdom cases of Islam; Ex parte Shah have been labelled by the influential Goodwin-Gill as ‘...a model in jurisdictions which continue to wrestle with the interpretation of ‘membership of a particular social group’, and as a challenge in those which either have opted out of providing protection to refugees, or have chosen the narrow path to protection, through interminable and unconvincing essays in sub-division’ (1997: 537).

Debates in Australia surrounding ‘social group’ have involved the size of the group, as well as whether the persecution can be an element in defining the ‘social group.’ In 1993, the Federal Court held in Lek Kim that ‘young single women’ and ‘women whose husbands had anti-governmental affiliations’ were too broad to constitute ‘social groups.’ In 1995, the Federal Court decided against Respondents A and B because the ‘social group’ involved did not have a recognisable existence separate from the persecution. The case was appealed and dismissed by the High Court, the argument still based on defining the ‘social group’ separately from the persecution (UNHCR 1997: 107).

The most authoritative statement on ‘social group’ in Australia at this time remains that of the High Court in Applicant A. The case again involves the question of persecution defining a group. It was decided that there must be a pre-existing, recognised social group that exists outside of any persecution, and the persecution cannot, by itself, be allowed to define the social group. However, it was stated in this case that ‘...practice, over time, can give rise to the creation of a social group, through the actions of the persecutors and the perceptions of society.’ The debate surrounding this issue is continuing.

Another issue relating to the ‘social group’ ground jurisprudence is whether it was intended to be a safety net, to remedy gaps created by the other, more specific grounds. In Applicant A, Dawson and McHugh JJ argued against the ‘safety net’ approach. They said that to define the ‘social group’ based on the persecution would result in the other Convention grounds being superfluous. Brennan CJ disagreed, stating that the ground was intended to include groups that would not be identified by the other grounds.[2]

Jurisprudence on the interpretation of these aspects of the definition of a refugee as applied to gender-related claims is far from settled. It is clear, however, that Australia’s application of the definition to date cannot be argued to be out of step with other signatory states. In each case, Australian interpretation is either in line with international practice or is of a more restrictive nature.


In this paper, I have examined the specific effects of some of the legislative changes contained in Bill No 6 on gender-related refugee claims. The interpretation of the definition of a refugee as applied in Australia has been assessed both in comparison with other jurisdictions, and with the intentions of the Convention’s drafters. These measures have been undertaken to illustrate the way in which the broader aim of the Minister, to narrow the interpretation of the definition of a refugee in Australian courts and tribunals, discriminates against gender-related claims.

In a final note, the MIMA v Khawar decision was possible because the case began prior to the introduction of Bill No 6. The Minister fought this decision as far as possible and ultimately lost in the High Court. If the matter arose now, a claim based on fear of domestic violence and the failure of the state to provide effective remedy would be much more likely to fail. That is clearly the intention behind Bill No 6.

In a similar situation to that of MIMA v Khawar and Bill No 6, the Matter of R-A- decision in the United States saw the BIA reverse a grant of asylum to a woman who had fled serious domestic violence and the failure of the state to protect her. Despite the fact that the immigration judge had specifically relied on Kasinga in making her finding, the BIA decided that the abuse was personal. The decision raised controversy, including in Congress (Musalo & Knight 2001: 55-6).

What followed, however, was in stark contrast to the situation that developed in Australia. Here, media attention focused on statements by the Minister that the definition of a refugee had been applied in situations ‘clearly beyond those originally intended’ (Ruddock 2001: 1), vilification of asylum seekers in general occurred, followed by legislation which forcibly narrows the definition in our courts and tribunals.

In the United States, the government finally acted to introduce legislation in regard to the case, but it was to propose amendments that represent ‘...a position more consistent with international norms and US jurisprudence than the BIA’s now-vacated R-A- decision.’ The United States legislative changes were the result of ‘...a national advocacy effort to reverse the Matter of R-A- decision’ involving an 18-month... campaign... [of] congressional lobbying, grassroots mobilization, and a highly successful media strategy’ (Musalo & Knight 2001: 57-9).

Domestic cases


Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331

Dranichnikov v MIMA & Ors [2001] FCA 769</A>

Khawar v Minister for Immigration and Multicultural Affairs [1999] FCA 1529; (1999) 168 ALR 190.

Lek Kim v Minister for Immigration [1993] FCA 493; (1993) 117 ALR 455

Minister for Immigration and Ethnic Affairs v Respondents A and B (1995) 130 ALR 40

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14

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


Canada (AG) v Ward [1993] 2 SCR 681.

New Zealand

Re MN Refugee Status Appeals Authority, New Zealand, Refugee Appeal No 2039/93, 12 February 1996.

United Kingdom

Islam v Secretary for the Home Department; R v Immigration Appeal Tribunal and Another; Ex parte Shah [1999] UKHL 20; [1999] 2 WLR 1015.

United States

Aguirre-Cervantes v INS, - F 3d -, 2001 US App LEXIS 4166 (9th Cir 21 March 2001)

Matter of Kasinga, 21 I & N Dec 357 (BIA 1996)

Matter of R-A- at 11-12 San Francisco, CA, Immigration Court, 20 September 1999

Domestic legislation


Migration Act 1958 (Cth)

Migration Legislation Amendment Bill (No 6) 2001

International legal materials

Convention on the Elimination of All Forms of Discrimination Against Women, Dec 18, 1979, 19 ILM 33

Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137

International Covenant on Civil and Political Rights, Dec 16, 1966, 999 UNTS 171

International Covenant on Economic, Social and Cultural Rights, Dec 16, 1966, 993 UNTS 3, 7

Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267

Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (1948)

Vienna Convention on the Law of Treaties, May 23, 1969, art32, 1155 UNTS


Anker D ‘Refugee status and violence against women in the “domestic” sphere: The non-state actor question’ (2000) paper for the International Association of Refugee Law Judges Conference, Bern, Switzerland, October, 2000.

Bacon R and Booth K ‘The intersection of refugee law and gender: private harm and public responsibility: Islam; Ex parte Shah examined’ [2000] UNSWLawJl 57; (2000) 23 UNSW Law Journal 135-163.

Bhabha J ‘Embodied rights: Gender persecution, state sovereignty and refugees’ in Yuval-Davis N and Werbner P (eds) Women, Citizenship and Difference Zed Books, London & New York 1990 178-191.

Bugden L K ‘Australia’ (1997) Autumn International Journal of Refugee Law 35-7.

Bunch C ‘Women’s rights as human rights: Towards a re-vision of human rights’ (1990) 12 Human Rights Quarterly 486.

Castel J R ‘Rape, sexual assault and the meaning of persecution’ (1992) 4 International Journal of Refugee Law 39-56.

Charlesworth H, Chinkin C and Wright S ‘Feminist approaches to international law’ (1991) 85 The American Journal of International Law 613-645.

Cipriani L ‘Gender and persecution: Protecting women under international refugee law’ (1993) 7 Georgetown Immigration Law Journal 511-548.

Clennell A ‘Bashed woman can stay as refugee’ The Sydney Morning Herald 12 April 2002.

Connors J ‘Legal aspects of women as a particular social group’ (1997) Autumn International Journal of Refugee Law Special Issue 114-128.

Corlett D ‘Politics, symbolism and the asylum seeker issue’ [2000] UNSWLawJl 52; (2000) 23 UNSW Law Journal 13-32.

Crawley H Refugees and Gender: Law and Process, Jordans, Bristol, 2001.

DIMA (Department of Immigration and Multicultural Affairs) Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers AGPS, Canberra 1996.

EP (European Parliament) ‘European Parliament resolution’ 14 November 1996; cited in Crawley H Refugees and Gender: Law and Process Jordans, Bristol 2001 13-4.

EXCOM ‘General conclusion on international protection’ Executive Committee Conclusions No 77 (XLVI) 1995.

Goodwin-Gill G S ‘Judicial reasoning and “social group” after Islam and Shah’ (1997) Autumn International Journal of Refugee Law Special Issue 537-543.

IAA (Immigration Appellate Authority) Asylum Gender Guidelines 2000.

INS (Immigration and Naturalization Service) Considerations for Asylum Officers Adjudicating Asylum Claims from Women 1995.

IRB (Immigration and Refugee Board) Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution IRB 1993 (updated in 1996).

Kingston M ‘Politics and public opinion’ in Crock M (ed) Protection or Punishment? The Detention of Asylum Seekers in Australia The Federation Press, Sydney 1993 8-14.

MB (Migration Board) Gender-Based Persecution: Guidelines for Investigation and Evaluation of the Needs of Women for Protection 2001.

Musalo K and Knight S ‘Steps forward and steps back: Uneven progress in the law of social group and gender-based claims in the United States’ (2001) 13 International Journal of Refugee Law 51-70.

Pirkko K Broadening the Edges: Refugee Definition and International Protection Revisited, Martinus Nijhoff Publishers, The Hague 1997.

Ruddock The Hon P Migration Amendment Bill (No 6) 2001 Explanatory Memorandum 2001

Spry M ‘Social group provisions of refugee applications: Applicant A v Minister for Immigration and Ethnic Affairs’ (1997) August Proctor 18-21.

Tadjbakhsh S ‘The refugee definition and gender-related persecution: An overview’ (2001) Proceedings of the International Conference on Women Fleeing Gender-based Persecution Montreal 184-9

Taylor S ‘The meaning of “social group”: The Federal Court’s failure to think beyond social significance’ [1993] MonashULawRw 13; (1993) 19 Monash University Law Review 307-325.

UNHCR, Statute of the Office of The United Nations High Commissioner for Refugees General Assembly Resolution 428(V) of 14 December 1950.

UNHCR ‘Gender-related persecution: An analysis of recent trends’ (1997) Autumn International Journal of Refugee Law Special Issue 79-113.

[*] Catherine Hunter is currently undertaking a PhD at the UNSW Faculty of Law. Her subject area is gender-related refugee claims in Australia.

[1] Sub-section 36(2) of the Migration Act 1958 (Cth) states that an applicant for refugee status must be a ‘non-citizen in Australia to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol’ (Spry 1997: 18). []

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