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de Costa, Alex --- "Assessing the Cause and Effect of Persecution in Australian Refugee Law:" [2002] FedLawRw 19; (2002) 30(3) Federal Law Review 535

[i]n the absence of clear legislative guidance, the domestic interpretation of our obligations has broadened out under cumulative court decisions so that Australia now provides protection visas in cases lying well beyond the bounds originally envisaged by the convention.[1]

The Migration Legislation Amendment Act (No 6) 2001 (Cth) (the 'No 6 Act') became law on 1 October 2001. It was one of a number of amending statutes[2] (passed by both Houses of Parliament in late September 2001) that were intended to fundamentally alter procedural and substantive areas of immigration and refugee law in Australia. This paper discusses aspects of the No 6 Act which amended the Migration Act 1958 (Cth) (the 'Migration Act') by inserting a new Subdivision AL into Part 2, Division 3. More specifically, it examines certain provisions of the No 6 Act which, in the Minister's words, are intended to provide 'legislative guidance' in respect of Australia's obligations pursuant to the Convention Relating to the Status of Refugees 1951[3] as amended by the Protocol Relating to the Status of Refugees 1967[4] (hereinafter compendiously referred to as the Convention).

The statutory basis of the protection visa regime to which the Minister referred is to be found in s 36 of the Migration Act. Under that section, the substantive criterion for the grant of protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention.[5] By art 1A(2) of the Convention, a refugee is defined as a person who,

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence, is unable or, owing to such fear, is unwilling to return to it.[6]

A person falling within this definition is entitled to the protection that the Convention extends to refugees. Such protection is to be afforded by contracting states observing the obligations imposed on them by the Convention. In practical terms, the foremost of these obligations is stipulated in art 33(1). It provides that no contracting state shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.

The effect of this non-refoulement obligation is that, subject to certain specified exceptions,[7] once a refugee claimant reaches the territory of a contracting state, the claimant is entitled to have her or his claim substantively determined prior to being removed from the contracting state's territory.

However, in the absence of a ruling from the International Court of Justice, the determination of refugee status in individual cases is a matter for contracting states.[8] As such, contracting states maintain a degree of latitude in the implementation of refugee determination procedures. Dr Crock points out, for instance, that Australia's procedures for determining asylum claims have developed 'as much in response to particular historical or political situations as in recognition of our international legal obligations.'[9] Legislative amendments that seek to refine or clarify the refugee definition for the purposes of Australian law perhaps typify this assertion. In particular, two provisions of the No 6 Act that will apply to a determination of whether an individual comes within art 1A(2) are now to be found in ss 91R(1) and 91S of the Migration Act. They respectively state as follows:

91R Persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons for the persecution; ...

91S Membership of a particular social group

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the the Refugees Protocol; and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

This paper does not explore the veracity of the notion that these two provisions reflect the original intent of the Convention. Rather, it examines the extent to which they require a re-evaluation of the pre-existing judicial approach to the issues of cause and effect that are raised by art 1A(2)'s use of the words 'for reasons of'. In this respect, it will be submitted that the amending provisions of the No 6 Act, most relevantly s 91R(1), can and should be applied in a manner consistent with the pre-existing case law. That is, it will be submitted that in the context of causation, the 'essential and significant reason' for a person's persecution is to be ascertained by a methodology that is sensitive to the need for 'value judgments and the infusion of policy considerations.'[10] Moreover, it will be contended that such policy considerations should principally derive from international human rights jurisprudence of which the Convention is a part.

However, these contentions implicitly draw one into more complex aspects of art 1A(2)'s operation. Indeed, this paper explores how ss 91S and 91R(1) represent the legislative reaction to the novel and difficult issues of cause and effect that arise where the conduct of non-State agents is said to contribute to an individual's persecution. The response to recent decisions of this type such as Minister for Immigration & Multicultural Affairs v Khawar[11] and Minister for Immigration & Multicultural Affairs v Sarrazola,[12] reflects the level of controversy that may be generated by art 1A(2)'s application in this context. For these reasons, it is necessary to observe how issues of cause and effect in Australian refugee law have been re-evaluated in light of a relatively recent development, the emergence of non-state agents of persecution.

THE EMERGENCE OF NON-STATE AGENTS OF PERSECUTION AND DEPARTURES FROM THE PARADIGM CASE OF PERSECUTION

As noted, the words 'for reasons of' in art 1A(2) require a causal nexus to be shown between a person's fear of persecution and her or his race, religion, nationality, membership of a particular social group or political opinion. However, as Kirby J pointed out whilst discussing the causal nexus contemplated by art 1A(2) in Chen Shi Hai v Minister for Immigration & Multicultural Affairs,[13] 'many acts lend themselves to ready assignment to different "reasons". Human conduct is rarely, if ever, uni-dimensional.'[14]

His Honour's observations are especially pertinent to the increasing number of refugee cases that involve a protection visa applicant claiming to fear persecution at the hands of a non-state agent in circumstances where the state is unwilling, indifferent or unable to provide protection from that persecution. The growing incidence of such cases has led Kalin[15] to suggest that the most significant developments in refugee law in the past ten years have been the emergence of non-state entities as agents of persecution and the relative decline of state power. In that context, Kalin suggests that 'it is highly likely that the majority of today's refugees are fleeing dangers emanating from non-state agents'.[16] This prospect recently led the United Nations High Commissioner for Refugees (UNHCR) to reiterate that 'for a person to qualify as a refugee under the 1951 Convention, it is immaterial whether the persecution feared stems from the State, or from parties or organisations controlling the State, or from non-state agents'.[17]

From a legal perspective, such developments necessitate frequent divergence from the orthodox or 'paradigm' refugee case. As recently noted by Gleeson CJ in Khawar, 'the paradigm case of persecution contemplated by the Convention is persecution by the State itself'. However, his Honour also asserted that '[i]t is accepted in Australia, and it is widely accepted in other jurisdictions, that the serious harm involved in persecution may be inflicted by persons who are not agents of the government of the country of nationality'.[18] In this respect, the Chief Justice's statements accord with those found in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status to the effect that although 'persecution is normally related to action by the authorities of a country' it may also exist where those authorities 'prove unable to offer protection'.[19] More recently, the UNHCR has asserted that State practice 'is overwhelmingly supportive of the position adopted by the UNHCR, that persecution by non-state agents falls within the scope of the 1951 Convention refugee definition.'[20]

Consistently with these developments (although without the benefit of statistical evidence), the proposition that Australian courts and tribunals are increasingly confronted with protection visa applications that invoke a non-paradigm refugee case is not an unreasonable one. More specifically, protection visa applicants are more frequently claiming to fear harm from the active conduct of non-state entities in circumstances where the State is unable or unwilling to provide protection. Such cases will often, among other things, entail intricate questions of legal causation that do not arise in the paradigm refugee case. For as Goodwin-Gill points out, '[c]ause and effect are yet more indirect where the government of the country of origin cannot be immediately implicated' in the persecution.[21]

Indeed, the complexities of assessing causation in the context of art 1A(2) are increased where no clear dichotomy exists between state and non-state conduct.[22] More specifically, where it is claimed that persecution arises through a combination of conduct by the state and non-state agents, an anterior issue is raised by the problem of identifying the source of the persecution. That is, one needs to precisely identify and isolate the source of the persecutory conduct—whether it be from the state or from a non-State agent—before one can determine whether it is for a Convention reason.[23] This is because Australian refugee law adheres to the principle that persecution necessarily entails an element of discrimination which can only be gauged by reference to the motivation or intent of the persecutor.[24]

In turn, the anterior problem of identifying the source of persecution leads one into questions about the applicability of art 1A(2) in circumstances where the state of nationality is simply unable to provide protection to an asylum-seeker. As will be discussed by reference to the decisions of the Full Federal Court in Sarrazola (No 4) and of the High Court in Khawar, these are issues to which several states parties to the Convention have provided varying responses. However, the recent approach of Australian courts to such questions has significantly clarified the key concepts of persecution and protection within art 1A(2), and so provided a sound methodology for identifying the source of persecution. This then has had the corollary of simplifying the questions that need to be asked in respect of the substantive issue of causation. It is in this sense that an understanding of recent Australian jurisprudence dealing with these matters is necessary in order to facilitate an appropriate response to the No 6 Act.

SARRAZOLA (NO 4) AND CUMULATIVE CAUSAL FACTORS

Consistently with his critique of the judiciary's approach to the application of the Convention during the second reading of the No 6 Act, the Minister stated that

[t]he convention was not designed to protect people who fear persecution for personal reasons that have little or nothing to do with the convention—for example, because they have failed to pay their family's debts. Yet a recent Federal Court case provides for this very scenario.[25]

The extrinsic statutory material[26] makes it clear that the case that the Minister was referring to was the decision of the Full Federal Court in Sarrazola (No 4). However, it is perhaps misleading to single out the Full Court's decision in Sarrazola (No 4) given that Ms Sarrazola had been a party to Federal Court proceedings since 1998.[27] In that time her claim for a protection visa pursuant to s 36 of the Migration Act was examined by eight judges in four separate sets of proceedings,[28] all of whom reached the same conclusion in respect of her applications' substantive legal merits. Yet in the passage of four days during September 2001, the No 6 Act was passed through both Houses of Federal Parliament, ostensibly for the reason that

the domestic interpretation of our obligations has broadened out under cumulative court decisions so that Australia now provides protection visas in cases lying well beyond the bounds originally envisaged by the Convention.[29]

Ms Sarrazola is a Colombian national with a husband and two children, all of whom resided in Colombia until 28 May 1996. Julian Redondo, a brother of Ms Sarrazola's, was assassinated in December 1995. Mr Redondo had been extensively involved in drug trafficking both in Colombia and the United States and at the time of his death owed Colombian underworld figures $US40 000. His assassination was allegedly a consequence of his inability to pay this debt. Subsequently, an individual who claimed to be owed the debt from Mr Redondo contacted Ms Sarrazola. He stated that because she was Mr Redondo's only surviving relative, responsibility for the debt now fell to her and her family. Furthermore, the individual demanded that Ms Sarrazola immediately sell her family's home to furnish the debt and threatened her children's lives if she did not do so. Ms Sarrazola's initial reaction was to report these threats to the relevant authorities (the 'Prosecutors Office'), however it proved unable to assist. In light of this official response, Ms Sarrazola and her husband took steps to acquire temporary entrance visas to Australia and thus arrived here as authorised non-citizens on 28 May 1996. Soon after, Ms Sarrazola's brother-in-law also arrived in Australia. He too had been threatened after the Sarrazolas had left Colombia and he reported that two subsequent inhabitants of the Sarrazolas' former home had also been subjected to demands from individuals wanting to know their whereabouts.[30]

All four Sarrazolas made applications for protection visas on 13 June 1996. On behalf of her family,[31] Ms Sarrazola claimed to fear persecution from Mr Redondo's debtors if compelled to return to Colombia. Moreover, that persecution was asserted to arise from a reason contemplated by art 1A(2) of the Convention, namely membership of the social group constituted by her family. However, the applications were refused by the Minister's delegate and that refusal was subsequently affirmed by the Refugee Review Tribunal (the 'RRT'). Ms Sarrazola sought review of the RRT's decision in the Federal Court and Hely J set its decision aside on 17 February 1999.[32] An appeal against his Honour's decision was dismissed on 6 October 1999.[33] Upon remittal of the matter to the RRT, it again affirmed the decision of the Minister's delegate. An application for review of the second RRT decision was again successful in the Federal Court with Madgwick J setting the decision aside on 23 August 2000.[34] The decision in Sarrazola (No 4) was the unsuccessful appeal against Madgwick J's judgment.

The leading judgment in Sarrazola (No 4) was written by Merkel J with whom Heerey and Sundberg JJ expressed concurrence. In light of Madgwick J's conclusions in Sarrazola (No 3), there were essentially two substantive issues dealt with in Merkel J's judgment: whether the RRT had applied the wrong legal test in determining that the Sarrazola family did not constitute a social group for the purposes of the Convention; and whether the RRT had erred in holding that, even if the Sarrazola family did constitute such a social group, no causal nexus could be established between the persecution and Ms Sarrazola's membership of that social group.

In the former context, Merkel J first noted the several authorities establishing the proposition that persecution arising through family association may constitute persecution by reason of membership of a particular social group.[35] However, following the Full Federal Court's analysis in Minister for Immigration and Multicultural Affairs v Zamora[36] of the High Court's decision in Applicant A,[37] the real issue was the nature of the test to be applied in determining whether the existence of such a social group could be sustained in this case. For present purposes it is sufficient to note that Merkel J considered that the RRT applied the wrong test in this context. That is, his Honour considered that the question to be asked by the RRT was whether 'the family unit considered to be a social group is publicly recognised as being set apart as such.' In contradistinction, the RRT had erred by considering whether the particular family (that is, the Sarrazolas) was differentiated in the relevant section of the Colombian community by reason of its fame or notoriety. Such an approach overly refined the test and led to a situation where only a family of some celebrity or reputation could be considered a specific social group for the purposes of the Convention.[38]

More relevantly for the purposes of this paper, Merkel J also agreed with Madgwick J in Sarrazola (No 3) that the RRT had erred in approaching the issue of causation, essentially for the same reasons identified by Hely J in Sarrazola (No 1). That is, on both occasions that the matter had been before the RRT it regarded the family connection between Ms Sarrazola and Mr Redondo as 'entirely subsidiary' to the cause of the persecution, which was exclusively attributed to the existence of the debt. Simultaneously though, the RRT also accepted Ms Sarrazola's evidence that 'there is a causal connection between [Ms Sarrazola's] relationship to her brother and the harm feared'.[39] Observing these conflicting elements of the RRT's reasoning, Hely J noted in Sarrazola (No 1) that Ms Sarrazola's persecution incorporated three intrinsically linked notions: 'a debt is owed to the criminals; the debtor is the applicant's deceased brother; and the attitude of the persecutors ... is that his relatives are now responsible for payment of the brother's debt'. Given that the RRT had accepted the cumulative nature of these circumstances, Hely J asserted that it was not open to it to conclude that Ms Sarrazola's relationship to Mr Redondo was not causally connected to the persecution.[40] In this context, because the pre-existing law dictated that the presence of a causal factor unrelated to a Convention reason would not be fatal to a protection visa application,[41] Merkel J held that the essentialist nature of the RRT's reasoning was impermissible.

Hely J's analysis in Sarrazola (No 1) reveals the manner in which each of the three relevant circumstances, when assessed cumulatively by virtue of their intrinsic relationship, contributed to Ms Sarrazola's persecution. It was their inseparability that necessitated the conclusion that her persecution was causally connected to her family association with Mr Redondo. Section 91S of the Migration Act, however, would now render an analogous causal link irrelevant for the purpose of determining eligibility for a protection visa. Because Mr Redondo's fear of persecution could clearly not be considered to arise for a Convention reason (s 91S(a)), it could not provide a basis upon which to claim an apprehension of persecution only because Ms Sarrazola was related to him (s 91S(b)(i)).

Having said that, it is not clear that s 91S would have changed the result of any of the Federal Court cases involving Ms Sarrazola. This is because s 91S is directed only to the process of 'determining whether [an applicant] has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of [the applicant's] family' (emphasis added). However, as Merkel J pointed out in Sarrazola (No 4), even if Ms Sarrazola's family could not validly constitute a particular social group itself, it may have nevertheless been incumbent on the RRT[42] to consider whether the material before it raised the possibility that 'the relevant social group was the families held responsible for the obligations of persons alleged to owe outstanding debts or obligations to underworld groups in Colombia'.[43] Clearly enough, a social group conceived in those terms would have been broader than the social group constituted by Ms Sarrazola's family and would thus have rendered s 91S inapplicable in that context.

DEPARTURES FROM THE PARADIGM CASE OF PERSECUTION AND THE NO 6 ACT

The fact that s 91S may not have changed the result in Ms Sarrazola's case underscores its highly specific nature[44] and reinforces the significance of s 91R(1) which has a far broader operation. That is, s 91R(1) requires an applicant for a protection visa to show that a reason (or reasons) specified in art 1A(2) of the Convention is 'the essential and significant reason' (or reasons) for the persecution. It has been suggested that the effect of s 91R(1) means that it is now 'not sufficient to demonstrate that a Convention ground was one of a number of motivations for persecution'.[45] However, Hely J's analysis in Sarrazola (No 1) indicates the difficulty with such general statements. Where multiple factors underlie cumulative circumstances resulting in an individual's persecution, how does one identify that persecution's 'essential and significant reason'? The following hypothetical example is intended to illustrate the arising complexities.

An applicant for a protection visa is an ethnic Chinese retailer who previously resided and worked in an Islamic province of Indonesia. The applicant's business was more successful than those run by both her ethnic Chinese and Islamic competitors. Subsequently, the difficult economic environment drives certain of those competitors to systematically extort and threaten the applicant to the extent that her business is rendered unviable. The applicant approaches the Islamic authorities who indicate that they are either unable or unwilling to assist a retailer in the ethnic Chinese community. As a consequence of the persistence of her competitors' conduct, the applicant experiences 'significant economic hardship that threatens [her] capacity to exist'.[46]

Such a scenario is scarcely inconceivable or novel. It will be seen to be a contemporary derivation of the hypothetical advanced by Lord Hoffman in Islam v Secretary of State for the Home Department,[47] which Kirby J set out in Chen.[48] In Lord Hoffman's illustration, a Jewish shopkeeper is attacked by a gang organised by an Aryan competitor in Nazi Germany. The gang acted on the understanding that the authorities would allow them to act with impunity. In seeking to identify the cause of the shopkeeper's persecution, his Lordship commented that

[i]t 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'.[49]

Although analogies drawn from the Jewish experience in Nazi Germany need to be applied with caution,[50] it can be seen that both Lord Hoffman's example (and the illustration of the ethnic Chinese retailer derived from it) and the circumstances in Sarrazola, represent departures from the paradigm case of Convention persecution that was identified by Gleeson CJ in Khawar. The following four categories of persecution, which were set out by Branson J at first instance in Khawar v Minister for Immigration & Multicultural Affairs[51], and which also informed the reasoning of Kirby J in the appeal to the High Court,[52] express the variations between the paradigm case and other types of persecution falling within art 1A(2):

1. where the State or its agents are directly responsible for persecuting a claimant on Convention based grounds [the "paradigm case"];

2. where the State either condones or ignores persecution by individuals for whom it is not responsible, but both the State and the individual share the discriminatory motive [the case reflected by Lord Hoffman's example];

3. where a non-State agent persecutes for a Convention reason and, although the State is not in sympathy with the motivation of the persecutor, it cannot protect the victim [as was the case in Sarrazola]; and

4. where a non-State agent persecutes, not for a Convention reason but, for a Convention reason, state protection is not available.[53]

Although Branson J considered only the fourth category to be contentious, presumably her Honour was referring only to the position under Australian law. For as Kalin observes, although many states would generally grant refugee status in the context of the third category, others that have accepted the 'accountability theory' within their refugee jurisprudence, such as France, Germany and Switzerland, would not.[54] The essence of the accountability theory is that 'the State cannot be perceived to be accountable for acts of private parties if it has no means and resources to protect the victims at its disposal'.[55] The corollary of this view is that a 'victim' of persecution from non-state agents which the state is simply unable to prevent will never be able to invoke art 1A(2). Cases like Sarrazola suggest that the accountability theory has not been adopted in Australia, although recent obiter statements by McHugh and Gummow JJ in Khawar suggest that the point may still be open.[56]

The relevance of the curial and academic discourse expressing divergent views concerning the accountability theory and the opposing 'protection-based'[57] approach to art 1A(2) is discussed below.[58] At this point, it is sufficient to note that the direct link in the case contemplated in the third category between the persecution and the Convention reason will generally represent a legally cognisable causal nexus for the purposes of art 1A(2). But the facts in Sarrazola, and the controversy following the Full Federal Court's decision, demonstrate the way in which the cumulative causal factors necessarily entailed may obscure that link to the point of rendering such a case marginal to the Convention's application.[59]

It is suggested that an equally challenging case, for the purposes of testing causation in refugee law, is raised by the fourth category. Arguably, the facts of any case falling within that category may be perceived as presenting a discontinuity between the persecution that has been (or will be) suffered by an individual and the discriminatory conduct ascribed to the state. On one view, the facts in Khawar illustrate this discontinuity.

THE RELATIONSHIP BETWEEN PERSECUTION, PROTECTION AND STATE CONDUCT

Ms Naima Khawar is a Pakistani national who, prior to arriving in Australia on 17 June 1997, resided in Lahore. In 1980 she married Mr Khawar Saeed Khokhar in what the RRT described as a 'love marriage'.[60] Mr Khawar's family disapproved of the union because an intra-family engagement had been prearranged for him. However, Mr Khawar severed ties with his family and the couple had a 'happy and normal'[61] marriage for approximately five years during which two daughters were born. It was when Mr Khawar re-established contact with his family that difficulties began to develop in the marriage. From Mr Khawar's family's perspective, Ms Khawar's 'failure' to bear a son exacerbated the fact that she had not brought a dowry to the marriage which thus deprived it of dignity and status. Increasingly, Mr Khawar adopted this perspective and, together with his brother, would physically assault Ms Khawar if she sought to defend herself or her children.

The birth of a son in 1995 did nothing to relieve the violence that Ms Khawar endured and she consequently began reporting her treatment to public authorities. On four occasions (accompanied by her brother-in-law twice), Ms Khawar related separate incidents of physical abuse to police in Lahore. This included an incident where, having accused her of adultery, Mr Khawar poured petrol on her and threatened to burn her. These assaults were not acted upon by the police. Fearing an escalation in the violence following these unsuccessful appeals to the authorities, Ms Khawar obtained visitor visas to Australia for herself and her three children. Having arrived here, all four lodged a combined protection visa application on 16 September 1997 which was refused by a delegate of the Minister some five months later.

An application for review of Ms Khawar's application was subsequently made to the RRT. Extensive submissions and supplementary submissions were made on behalf of the applicant to support her claim to refugee status.[62] Their essential basis was that Ms Khawar had suffered the domestic violence of her husband by reason of her membership of a particular social group. That social group was variously described as 'married women in Pakistan', 'married women in Pakistan without the protection of a male relative', 'married women in Pakistan suspected of adultery' and 'women who have transgressed the mores of Pakistani society'.

Ms Khawar's membership of that social group was asserted to mean that the Pakistani state was unwilling or unable to protect her from Mr Khawar's violence. That claim was supported not only by Ms Khawar's own evidence concerning the disinterest and apathy of the Lahore police but by an extensive body of independent country information. Such information included detailed references to reports from the US State Department, Amnesty International and the Australian Department of Foreign Affairs and Trade pertaining to the nature of domestic violence in Pakistan and the reluctance of police to intervene. The US State Department report on Pakistan for 1997 was, for instance, quoted as asserting that '[w]hile abusive spouses may be charged with assault, cases are rarely filed. Police usually return battered wives to their abusive husbands.'[63]

The RRT rejected Ms Khawar's application. The following extract expresses its essential reason for doing so:

The Tribunal finds that [Mr Khawar] was not motivated to harm her because she was a member of a particular social group. There is no nexus between the harm which [Ms Khawar] claims to have suffered at the hands of her husband and the Convention ground of particular social group ... She was harmed because [Mr Khawar's family] were angry or shamed by the fact that he married her for love ... [this] was not related to the Convention but rather was because of the problems [Mr Khawar] perceived that she brought upon him and his family.[64]

The RRT did not make any findings pertaining to the Pakistani state's attitude towards particular social groups comprised of Pakistani women. It chose not to do so on the basis that no relationship existed between Mr Khawar's domestic violence, which the RRT found had arisen only as a consequence of the marriage's nature, and any demonstrable state attitude towards it. The RRT considered that Ms Khawar's claims to refugee status could be rejected exclusively on that basis.

In an application for review of the RRT's decision in the Federal Court, Branson J concluded that it had erred in two respects. Firstly, her Honour considered that it was incumbent on the RRT to attempt to identify any social group of which Ms Khawar might be a member prior to any conclusion it might reach concerning the validity of her claims to persecution by virtue of that membership.[65] Secondly, Branson J appeared to reject the RRT's notion that any disinclination that the Pakistani state may have had to protecting a social group of which Ms Khawar was a member was immaterial in light of the fact that her husband's violence was an exclusive product of their particular family situation.[66] Her Honour apparently considered such an approach to be at odds with s 36 of the Migration Act[67] and the context provided by the Convention.[68]

A Full Court of the Federal Court dismissed an appeal from Branson J's decision.[69] Lindgren J, with whom Mathews J expressed concurrence, thought that Ms Khawar's case could be approached in one of two ways. Firstly, his Honour considered that it was at least open to the RRT to find that the Pakistani state systematically discriminated against 'women in Pakistan' or 'married women in Pakistan' by not protecting them from the violence of their husbands. This inaction would, of itself, constitute persecution within the contemplation of art 1A:

the persecutory conduct would be the state's systematic failure to protect 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.[70]

It will be seen that this conception of the issues accords with the paradigm case of Convention persecution expressed in the first category set out by Branson J at first instance. Firstly adopting this view of the facts, Lindgren J considered that the RRT's singular focus on the private nature of the violence suffered by Ms Khawar represented an overly narrow approach to art 1A(2).[71] Secondly, his Honour considered that it was incumbent upon the RRT to examine whether the relevant persecutory conduct emerged from the combination of Mr Khawar's violence and the absence of State protection. That conception of the facts found support from the approach of a majority of the House of Lords in the similar case of Islam, and in particular from the following statement by Lord Hoffman:

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.[72]

According to this formulation, Lindgren J did not consider it necessary to specifically identify the persecutor or persecutors, because persecution within the contemplation of art 1A could 'consist of the effect of the conduct of two or more persons, only one of whom may be moved by a Convention reason'.[73] Thus, the RRT erred by failing to consider whether Ms Khawar feared violence from her husband in conjunction with the 'objective fact of lack of state protection for reason of her membership of a particular social group', or alternatively whether Ms Khawar feared such violence together with the fact that her husband knew that the State would not seek to intervene.[74]

The High Court dismissed the Minister's appeal.[75] The Court's decision is valuable for its discussion of how state conduct, in the context of persecution by non-state agents, may remain the relevant causal factor for the purposes of art 1A(2). Three separate concurring judgments were delivered by Gleeson CJ, McHugh and Gummow JJ and Kirby J (Callinan J dissented). At the forefront of the Minister's submissions before the Court was the contention that

persecution and protection are distinct concepts in the Convention definition of refugee, and that it is impermissible to treat absence of state protection as a factor capable of converting private harm, based upon a motivation other than one of the Convention reasons, into persecution within the Convention definition.[76]

Applying that proposition to the facts, the Minister was essentially endorsing the RRT's determination that the evidence pertaining to the attitude of the Pakistani state was rendered irrelevant by the private nature of the harm endured by Ms Khawar. The submission was supported by an assertion that art 1A(2), when properly construed, did not permit the concepts of persecution and protection to be fused. That is, whether a person is persecuted for a Convention reason is a discrete question to whether that person, by reason of the persecution, is unwilling or unable 'to avail himself [or herself] of the protection of the country of nationality.' Of course, the latter question reflects the language of the second part of art 1A(2).

Gleeson CJ's approach to this submission was similar to that taken by McHugh and Gummow JJ in their joint reasons. All three judges derived assistance from historical and textual analyses of the second part of art 1A(2) undertaken by Kalin,[77] Fortin[78] and Grahl-Madsen.[79] For both Fortin and Kalin, the concept of protection in that part of art 1A(2) meant 'external protection'[80] ('diplomatic or consular protection granted by the country of origin abroad') rather than 'internal protection'[81] ('protection provided inside the country of origin').[82] In a passage cited by McHugh and Gummow JJ,[83] Grahl-Madsen suggests how a putative asylum-seeker might pursue external protection:

He may do this by applying for and receiving a national passport ... or a certificate of nationality, for the purpose of regularizing his stay in a foreign country on the basis thereof, in order to be able to invoke a treaty of reciprocity, or to claim other benefits due to persons of his nationality, or for some similar reason. In more rare cases he may request his national authorities to intervene in his favour with the authorities of another State.[84]

As such, to come within a construction of art 1A(2) that contemplates this notion of external protection, an asylum seeker not only has to be outside her or his country of nationality by reason of persecution on one of the specified grounds. She or he must also be either unable or unwilling to seek the external protection of her or his country of nationality. But as Gleeson CJ pointed out, this does not mean that the concept of internal protection is irrelevant to art 1A(2).[85] To the contrary, evidence that a person will not receive protection within her or his country of nationality will lend credibility to an unwillingness to seek that country's external protection. McHugh and Gummow JJ endorsed the following proposition in this context:

it may surely be legitimate for a person who fears non-state agents not to accept diplomatic protection outside the country as this would provide the country of origin with the possibility of lawfully returning him or her to that country. This would expose the refugee to the feared harm and therefore would make his or her unwillingness to avail of such external protection both reasonable and 'owing to such fear' of persecution.[86]

By this approach, McHugh and Gummow JJ overtly eschewed a 'protection-based' construction of art 1A(2). Such a construction equates the concepts of persecution and protection by contending that the state of nationality's failure to provide protection from harm itself enlivens art 1A(2) and obliges Convention parties to offer 'surrogate protection'. This construction is sometimes expressed by the proposition that 'Persecution = Serious Harm + The Failure of the State to Protect'.[87] It emerges from Hathaway's contention that 'persecution is most appropriately defined as the sustained or systematic failure of state protection in relation to one of the core entitlements which has been recognised by the international community.'[88] From this, one may perceive a link between the protection-based approach and a developing international human rights jurisprudence that imposes on states 'positive' duties to protect citizens supplementary to 'negative' obligations not to infringe individual rights.[89] Indeed, such considerations informed the reasoning of Lord Hope of Craighead in the House of Lords in Horvath v Secretary of State for the Home Department[90] and also underlay similar decisions of the Canadian Federal Court of Appeal[91] and the New Zealand Court of Appeal.[92] In Australia, the protection-based view was adhered to by Kirby J in his separate concurring judgment in Khawar[93] and was adopted by Lindgren J in the Full Federal Court.[94]

For McHugh and Gummow JJ however, the question of protection (in the sense of external protection) was a matter necessarily assessed independently from the issue of persecution. Their Honours considered that state conduct—whether passive or active—could only be relevant to the question of persecution to the extent that that conduct could itself be characterised as persecution. Consequently, in Ms Khawar's case, McHugh and Gummow JJ stated that 'the persecution in question lies in the discriminatory inactivity of state authorities in not responding to the violence of non-state actors. Thus, the harm is related to, but not constituted by, the violence.'[95] As such, their Honours effectively rejected the independent existence of the second and fourth categories of persecution set out by Branson J at first instance. It would appear that those categories are simply subcategories falling within the rubric of the paradigm case. In short, in circumstances where one can relate the absence of state protection to a Convention reason that absence should be focused on as the relevant persecutory conduct. Conversely, if no nexus exists between the absence of state protection and a Convention reason, then that absence is irrelevant to the issue of persecution. This accords with the first and preferred view set out by Lindgren J described above.[96]

One should not, however, confuse McHugh and Gummow JJ's reasoning in this context (which accords with that of Gleeson CJ) with an acceptance of the accountability theory. Because Ms Khawar had characterized the state's conduct as itself amounting to persecution, there was no need for their Honours to consider a situation where the state was simply unable to provide protection. But one can test their Honours' reasoning by applying it to the facts in Ms Sarrazola's case. There, the Colombian authorities were unable to offer Ms Sarrazola protection from those that sought Mr Redondo's debt. Consistently with McHugh and Gummow JJ's approach, that fact would have no relevance to the question of whether Ms Sarrazola was persecuted for a reason falling within art 1A(2). If she could show that she was otherwise persecuted for a Convention reason (which, putting aside the application of s 91S, she was), only then would the inability of the Colombian authorities to provide her with internal protection assume relevance. That is, it would be the critical factor in assessing whether her unwillingness to avail herself of the external protection of the Colombian authorities was well-founded. In this sense, one may appreciate that the formulation adopted by McHugh and Gummow JJ, together with Gleeson CJ, leaves scope for art 1A(2)'s application even where the state cannot be held accountable for the harm perpetrated by non-state agents.[97]

The reasoning of Gleeson CJ, together with that of McHugh and Gummow JJ, provides a degree of clarity to art 1A(2)'s operation that is perhaps lacking in jurisdictions where the concepts of persecution and protection are not separated.[98] Simultaneously, their Honours' recognition of the practical relationship between external protection and internal protection checks the adoption of the accountability theory into Australian refugee law.[99] Where a protection visa applicant demonstrates persecution for a Convention reason, primary decision-makers will now need to consider whether that applicant can justifiably refuse to seek external protection. Obviously, if the state of nationality has been the persecutor, or if it has been unable to provide protection from non-state agents, that refusal is likely to be justifiable. As such, it is submitted that the approach to art 1A(2) adhered to by a majority of the High Court in Khawar does not confine or change the substantive operation of Australia's refugee law. It is interesting to note, however, that at the outset of their reasons, McHugh and Gummow JJ observed that '[i]t is common ground that the appeal is to be determined by reference to the legislation as it stood before the commencement of the Migration Legislation Amendment Act (No 6) 2001 (Cth).'[100] The relevance of the No 6 Act to cases like Khawar and Sarrazola should now be considered.

IDENTIFYING THE 'ESSENTIAL AND SIGNIFICANT' REASON FOR PERSECUTION: THE NO 6 ACT AND THE ROLE OF POLICY

By distinguishing between the concepts of persecution and protection in art 1A(2), the reasoning of Glesson CJ and McHugh and Gummow JJ in Khawar compels one to precisely identify the source of claimed persecutory conduct. Having identified that source however, a question may remain: does the persecution emanating from that source—whether it be from the state or from a non-state agent—amount to persecution for a Convention reason? Although this question will often not be a simple one, the extent to which the High Court's analysis in Khawar has clarified it can be gauged by reference to Ms Khawar's case itself. That is, by focusing on the state as the source of her persecution one is compelled to disregard the contention that because Mr Khawar harmed her for purely private or domestic reasons Ms Khawar's case could not fall within art 1A(2). The relevant question is whether the Pakistani state's failure to assist Ms Khawar amounts to persecution for a Convention reason.[101]

That question must now be further refined in light of s 91R(1) of the Migration Act. That is, a protection visa applicant must now demonstrate that the Convention reason is 'the essential and significant reason' for her or his persecution. Although this statutory formulation is novel, questions of causation and attribution have received considerable attention in Australian refugee jurisprudence.[102]

In Chen,[103] the appellant was the Australian-born son of two unmarried Chinese nationals. The parents had entered Australia without lawful permission and the appellant was born while they were in detention. Because the appellant was their third child, he was born in contravention of China's One Child Policy. This, together with the fact that the appellant would have been considered illegitimate, led the RRT to conclude that he was a member of a particular social group comprised of 'black children' (Hei Haizi). The RRT also found that a 'black child' compelled to return to China would face significant economic and social disadvantages that could not be overcome by virtue of the indigent state of the appellant's parents.[104] Indeed, the RRT characterized these disadvantages as amounting to persecution. It did not, however, consider that those disadvantages could be conceived as persecution 'for reason of' the appellant being a black child.

It can be seen that a number of factors were causally linked to the persecution the appellant would experience: the existence of China's One Child Policy which meant that the appellant would face severe economic and social disadvantages if compelled to return to China; the conduct of the appellant's parents in contravening that policy; and the indigent state of the appellant's parents which prevented them overcoming the economic and social impediments that the appellant would experience upon returning to China. It is clear that only the first of those factors could have independently satisfied art 1A(2). Thus, in both the RRT and the Full Federal Court,[105] the attribution of causal significance to the second and third factors resulted in decisions adverse to the appellant. For both French J[106] at first instance and the High Court,[107] however, the first factor was the prevailing and determinative cause.

In Gersten v Minister for Immigration and Multicultural Affairs,[108] a Full Federal Court observed that causation was not the subject of direct comment in the joint judgment of the High Court in Chen.[109] Nevertheless, the joint judgment did agree with Kirby J that the Full Federal Court in Chen had erred in concluding that any persecution suffered by the appellant would be the direct result of his parents' conduct and was therefore not within art 1A(2). Kirby J's discussion of the causation point consequently provides an insight into that conclusion's basis. His Honour's judgment was approached in that way by the Full Court in Gersten.[110]

Kirby J asserted that '[t]he meaning of any statutory notion of causation depends upon the precise context in which the issue is presented.'[111] However, in the context of the Convention, the element of causation connoted by the words 'for reason of' 'will usually involve the decision-maker in introducing considerations of policy which cannot be reduced to a strictly logical deduction from words.'[112] More specifically, the decision-maker has to evaluate 'the postulated connexion between the asserted fear of persecution and the ground suggested to give rise to that fear'[113] always bearing in mind 'the broad policy of the Convention'.[114] Having recognised that policy considerations will fundamentally inform the assessment of causation in refugee law, Kirby J then applied that principle to the circumstances of the case:

[g]iven the objects of the Convention and of Australian law providing it local effect, the persecution of the child is 'for reasons of' its membership of the particular social group of 'black children'. The persecution is designed to punish the parents for their infractions of the law and to discourage potential parents from breaking that law. But it is done by discriminating against innocent children who are popularly described as 'black children'.[115]

The extent to which policy considerations ultimately decided the causation issue is revealed by juxtaposing Kirby J's reasoning with that of O'Loughlin and Carr JJ in the Full Federal Court. In the latter decision, their Honours considered that 'the policy reflected by the Convention' did not contemplate that parents could 'confer refugee status on their children by bringing those children into the world in circumstances where that very procreation is contrary to the policy of laws of general application in their country of origin.'[116]

Although Chen was not a case involving persecution by non-state agents, it appears to stand for the proposition that where persecution arises by virtue of cumulative causal factors, an intuitive approach informed by policy considerations will dictate whether a particular factor is, or is not, causally linked to the persecution for the purpose of art 1A(2)'s satisfaction. The relevance of Chen to circumstances where the state is not the persecutor is illustrated by the decision of Branson J in Okere v Minister for Immigration and Multicultural Affairs.[117] There, the applicant was a Nigerian national who had converted to Christianity while away from Nigeria. His primary claim was that if he was compelled to return to Nigeria he would be forced to assume leadership of a local religious group. He also claimed that if he did not accept leadership of the group his life would be threatened and the government would be unable to protect him. The RRT accepted these claims but considered that this threat of persecution arose because of the applicant's conduct in deciding not to lead the group and not by virtue of his religious beliefs. In setting aside the RRT's decision, Branson J observed that it had constructed a 'false dichotomy' by asking itself whether 'the applicant faces harm by reason of his religion or he faces harm by reason of what he has done as an individual'. Her Honour stated that

[t]he Refugees Convention does not, in my view, require the imposition of such a dichotomy upon the facts of any particular case. The RRT was required in this case, in my view, to ask itself whether, applying common sense to the facts which it accepted, the applicant has a well-founded fear of persecution the true reason for which is his religion.[118]

Branson J considered that the exercise of such 'common sense' was to be guided by McHugh J's statement in Applicant A[119] that art 31 of the Vienna Convention[120] calls for an holistic approach in which '[p]rimacy is to be given to the written text of the Convention but the context, object and purposes of the treaty must also be considered.'[121] The notion of an approach informed by common sense was indebted to Mason CJ's discussion of causation in common law negligence in March v E & MH Stramare Pty Ltd.[122] However in light of McHugh J's approach in Applicant A, Branson J considered that borrowing from the common law reflected 'an appropriate approach to the construction of this aspect of art 1A(2) of the Convention.'[123] In so holding, her Honour's decision echoed French J's judgment at first instance in Chen,[124] an approach followed by Katz J at first instance in Gersten.[125]

As Branson J noted subsequently in Hellman v Minister for Immigration & Multicultural Affairs[126] however, the approach adopted in Okere, and in the earlier and similar decision of her Honour in Kanagasabai v Minister for Immigration & Multicultural Affairs,[127] should not be characterised 'as an application of the "but for" common law test of causation'. To the contrary, her Honour stressed that 'the Convention test is to be differentiated from the common law test of causation applicable in tort law,' and that 'the preferable course for the tribunal to adopt is to focus on the actual wording of art 1A(2) of the Convention'.[128] Branson J made these statements after once again emphasising 'the need for the tribunal to identify the true reason for the apprehended persecution [by] applying common sense to the facts of the case having regard to the object and purpose of the Convention'.[129]

It is submitted that s 91R(1) can and should be applied in a manner consistent with the approach developed by Branson J following McHugh J in Applicant A and Kirby J in Chen. That is, an examination of whether 'the essential and significant reason' for persecution is one specified in the Convention can only be undertaken by the deployment of common sense and with a regard to the Convention's object and purpose. In this sense, s 91R(1) should be read as refining the question to be asked but not as substantively altering the pre-existing judicial approach. More specifically, if a Convention ground is one of a number of reasons for a person's persecution, s 91R(1) should not be read so as to automatically preclude art 1A(2)'s application. Where a primary decision-maker is confronted with such circumstances, a common sense approach to art 1A(2) that is guided by the Convention's object, policy and purpose should substantively inform the assessment of whether a Convention ground is the persecution's essential and significant reason. That determination should not be made at a level of abstraction called for by scientific and philosophical notions of causation. Instead, it should reflect the fact that approaches to legal causation must be sensitive to the need for 'value judgments and the infusion of policy considerations.'[130]

This leads one to speculate on the content and nature of the policy considerations that inform art 1A(2)'s application. The following concluding remarks suggest that such considerations should primarily derive from a recognition that the Convention is an instrument intended to provide international protection for human rights in the absence of national protection.[131]

CONCLUSION

Given the complexity of the foregoing issues it is perhaps not surprising that the Australian judiciary's approach to causation in refugee law has been susceptible to the type of criticism now manifested by the No 6 Act.[132] Where issues are not straightforward and where claims made by protection visa applicants depart from orthodoxy, judicial reasoning has tended to be supplanted by criticism that derives from strictly unrelated policy concerns. Indeed, the two provisions of the No 6 Act examined by this paper manifest the Australian federal legislature's candidly censorious response to how courts have responded to the issues of cause and effect raised by protection visa applications that involve claims of harm perpetrated by non-state agents.

However, in Minister for Immigration and Ethnic Affairs v Guo,[133] the High Court cautioned that 'it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term.'[134] More specifically in Chen,[135] Kirby J warned that '[i]n the context of the expression "for reasons of" in the Convention, it is neither practicable nor desirable to attempt to formulate "rules" or "principles" which can be substituted for the Convention language'.[136] As such, this paper has suggested that s 91R(1) should be construed so as to be consistent with the proposition that '[t]he Convention should be interpreted giving primacy to the ordinary meaning of its terms in their context and in the light of its object and purpose'.[137]

For this reason, it becomes necessary to reflect on the object and purpose of the Convention. In Applicant A, after setting out the first two recitals of the Convention's preamble, Brennan CJ observed

[b]y invoking 'the principle that human beings shall enjoy fundamental rights and freedoms without discrimination' and by speaking of the United Nations' 'profound concern for refugees' and its endeavour 'to assure refugees the widest possible exercise of these fundamental rights and freedoms', the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms.[138]

Accordingly, the notion that the reference to the Universal Declaration of Human Rights 1948 ('the Universal Declaration') in the Convention's preamble marks it as an instrument for the protection and realization of human rights has been acknowledged in Australian refugee jurisprudence. The reasoning of Merkel J in Sarrazola (No 4) provides an illustration of how the Universal Declaration may be invoked. Following his earlier decision in Wang v Minister for Immigration & Multicultural Affairs,[139] his Honour referred to art 16(3) of the Universal Declaration which states that '[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.' On that basis, Merkel J stated that

it is entirely consistent with the Convention that a person's freedom from persecution on the basis that he or she is a member of a particular social group, namely a family, can be one of the fundamental rights and freedoms assured to refugees.[140]

In adopting this approach, Merkel J implicitly acknowledged that human rights may not be protected by simply imposing 'negative obligations' on States—that is, obligations not to violate the human rights of individuals. Indeed, it is trite that many human rights may only be realised or protected by imposing 'positive obligations' on states to protect individuals against abuses by other individuals.[141] It is in this sense that one may perceive the relationship between contemporary human rights jurisprudence and the involved questions of legal causation that may arise where persecutory acts are committed by non-state agents. More broadly, by providing a policy framework for the Convention's operation, that jurisprudence should dictate how s 91R(1) of the Migration Act is to apply in a particular case. If a Convention ground is a reason for a person's persecution and that persecution violates the person's human rights, then an informed approach to art 1A(2)'s application will entail a conclusion that the Convention ground is the 'essential and significant reason' for that persecution. The possibility that the persecution may be attributed to other non-Convention grounds should not preclude art 1A(2)'s application. In other words, s 91R(1) should not be read to permit the type of essentialist reasoning that characterised the RRT's decision in Khawar. This is a commonsense and realistic approach to s 91R(1) that is consistent with the pre-existing case law and reconcilable with the language of the statute.

However, such decisions will now be made by administrative tribunals exercising a largely unsupervised jurisdiction. At the outset of this paper, it was noted that the No 6 Act was one of several pieces of amending legislation seeking to fundamentally alter procedural and substantive areas of immigration and refugee law in Australia. The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) inserted a privative clause into the Migration Act that was intended to all but remove the already narrow grounds of review available to protection visa applicants in the Federal Court.[142] Although the constitutionality and effect of the privative clause are presently contentious[143] the scope for review of a decision involving an incorrect reading of s 91R(1) is currently slight.[144] Nevertheless, this paper has suggested that the pre-existing case law provides guidance that is comprehensive, principled and humanitarian and should dictate how s 91R(1) is to be applied, by Australian tribunals and courts, to prospective claims for protection visas.


[*] BA LLB (Hons) (Syd), the author thanks the anonymous referee for the Federal Law Review for helpful comments.

[1] Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30420 (Phillip Ruddock, Minister for Immigration & Multicultural Affairs).

[2] On 26 and 27 September 2001, the Commonwealth Parliament passed: the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth); the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); the Migration Legislation Amendment Act (No 1) 2001 (Cth); the Migration Legislation Amendment Act (No 5) 2001 (Cth); the Migration Legislation Amendment Act (No 6) 2001 (Cth); the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

[3] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

[4] Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

[5] Migration Act, s 36(2).

[6] For the purposes of ease of reference throughout this paper, a reference to a person's country of nationality is a reference to a person's country of former habitual residence unless the context indicates otherwise.

[7] See Convention, art 33(2).

[8] Mary Crock, Immigration & Refugee Law in Australia (1998) 126.

[9] Ibid 127.

[10] This formulation derives from Chappel v Hart (1998) 195 CLR 232, 255 (Gummow J). For the applicability of common law principles of causation in the context of determining refugee status see below and also the discussion of Mark Leeming, 'When is Persecution for a Convention Reason?' (2000) 7 Australian Journal of Administrative Law 100, 103.

[11] [2002] HCA 14; (2002) 187 ALR 574 ('Khawar').

[12] [2001] FCA 263; (2001) 107 FCR 184 (Heerey, Sundberg and Merkel JJ) ('Sarrazola (No 4)').

[13] [2000] HCA 19; (2000) 170 ALR 553 ('Chen').

[14] Ibid 570.

[15] Walter Kalin, 'Non-State Agents of Persecution and the Inability of the State to Protect' (2001) 15 Georgetown Immigration Law Journal 415. See also Hélène Lambert, 'The Conceptualisation of "Persecution" by the House of Lords: Horvath v Secretary of State for the Home Department' (2001) 13 International Journal of Refugee Law 16, 21; Deborah Anker, Lauren Gilbert and Nancy Kelly, 'Women Whose Governments are Unable or Unwilling to Provide Reasonable Protection from Domestic Violence May Qualify as Refugees Under United States Asylum Law' (1997) 11 Georgetown Immigration Law Journal 708, 728 who write that,

the 'non-state agent' doctrine is established in United States asylum law; it is an evolving concept under international human rights principles. International law also has begun to address the complex issue of a standard for evaluating whether or not the state has failed to take reasonable action to protect against such non-state harm.

[16] Kalin, above n 15, 415. Kalin observes that

[t]he nature of persecution is changing, as evidenced by the increasing frequency of persecution of minorities by their neighbours belonging to the majority, ethnic cleansing or even genocide carried out by militias, terrorist attacks and killings by groups claiming to fight in the name of a religious creed, or attacks on the civilian population by insurgent groups fighting for independence. Although statistics are not available, it is highly likely that the majority of today's refugees are fleeing dangers emanating from non-state agents.

See also European Council on Refugees and Exiles, Research Paper on Non-State Agents of Persecution (Autumn 2000) <http//:www.ecre.org/research/nsagents.pdf> at 27 November 2002.

[17] United Nations High Commissioner for Refugees, UNHCR's Observations on the European Commission's Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons who Otherwise Need International Protection, 12 September 2001, COM (2001), 2001/0207(CNS)) 2.

[18] Khawar [2002] HCA 14; (2002) 187 ALR 574, 580.

[19] Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1995) 3.

[20] United Nations High Commissioner for Refugees, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (2001) 19.

[21] Guy S Goodwin-Gill, The Refugee in International Law (2nd ed, 1996) 70.

[22] As Gleeson CJ observed in Khawar [2002] HCA 14; (2002) 187 ALR 574, 581:

[t]he references in the authorities to state agents of persecution and non-state agents of persecution should not be understood as constructing a strict dichotomy. Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm.

[23] This analysis is consistent with that of Brennan CJ in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 ('Applicant A'), 233, who was not in dissent in making the following statement: '[t]he feared "persecution" of which Art 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution ... [s]econdly, the feared persecution must be discriminatory.'

[24] As McHugh J stated in Applicant A (1997) 190 CLR 225, 258,

[w]hether 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.

Note the distinction here between discriminatory intent and persecutory intent. Leeming recognises that the latter is not a precondition to a finding of persecution: Leeming, above n 10, 101.

[25] Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30422 (Phillip Ruddock, Minister for Immigration & Multicultural Affairs). See also Commonwealth, Parliamentary Debates, House of Representatives, 20 September 2001, 31119–20 (Geoffrey Prosser).

[26] Department of the Parliamentary Library Information and Research Services, 'Migration Legislation Amendment Bill (No 6) 2001' (2001–02) Bills Digest 55. See also Sobet Haddad, 'Qualifying the Convention Definition of Refugee' (2002) 1 Immigration Review 20, 22.

[27] On 17 February 1999, Hely J delivered judgment in Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 ('Sarrazola (No 1)'). The application in those proceedings was filed in 1998.

[28] Sarrazola (No 1) [1999] FCA 101 (Hely J); Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517 ('Sarrazola (No 2)') (Einfeld, Moore and Branson JJ); Sarrazola v Minister for Immigration and Multicultural Affairs [2000] FCA 919 ('Sarrazola (No 3)') (Madgwick J); Sarrazola (No 4) [2001] FCA 263; (2001) 107 FCR 184 (Heerey, Sundberg and Merkel JJ).

[29] Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30420 (Phillip Ruddock, Minister for Immigration & Multicultural Affairs).

[30] Background facts taken from Merkel J's judgment in Sarrazola (No 4) [2001] FCA 263; (2001) 107 FCR 184, 187–8.

[31] The effect of s 36(2)(b) of the Migration Act was that if Ms Sarrazola's application for a protection visa was successful, her husband and children would also be entitled to protection visas.

[32] Sarrazola (No 1) [1999] FCA 101.

[33] Sarrazola (No 2) [1999] FCA 1134; (1999) 95 FCR 517 (Einfeld, Moore and Branson JJ).

[34] Sarrazola (No 3) [2000] FCA 919.

[35] Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113, [42]–[44] (Sackville J); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366, 377 [33] (Wilcox J); Sarrazola (No 1) [1999] FCA 101, [36] (Hely J).

[36] [1998] FCA 913; (1998) 85 FCR 458 (Black CJ, Branson and Finkelstein JJ).

[37] (1997) 190 CLR 225.

[38] [2001] FCA 263; (2001) 107 FCR 184, 195.

[39] See the portion of the RRT decision extracted in Madgwick J's decision in Sarrazola (No 3) [2000] FCA 919, [47].

[40] [1999] FCA 101, [44]–[45].

[41] See Jahazi v Minister for Immigration & Multicultural Affairs (1995) 61 FCR 293; Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576; Thalary v Minister for Immigration & Multicultural Affairs (1997) 73 FCR 437; Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111; (2000) 62 ALD 73; Hellman v Minister for Immigration & Multicultural Affairs [2000] FCA 645; (2000) 175 ALR 149.

[42] [2001] FCA 263; (2001) 107 FCR 184, 196 where Merkel J referred to a line of authority that establishes the proposition that the RRT, as an inquisitorial body, is required to examine all the material put before it to determine any valid basis of protection. This is so regardless of the way the claims are put by the applicant: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28, 62–63; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285, [15]; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287, 293; Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157, 180 [114]; Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113, [58]–[59].

[43] Ibid.

[44] See Haddad, above n 26, 23.

[45] Department of the Parliamentary Library Information and Research Services, above n 26, 15.

[46] Persecution of this type is defined by s 91R(2)(d) of the Migration Act.

[47] [1999] UKHL 20; [1999] 2 AC 629 ('Islam').

[48] [2000] HCA 19; (2000) 170 ALR 553, 570.

[49] [1999] UKHL 20; [1999] 2 AC 629, 654.

[50] As Hill J noted in the Full Federal Court in Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501, 516-517, '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.'

[51] [1999] FCA 1529; (1999) 168 ALR 190.

[52] [2002] HCA 14; (2002) 187 ALR 574, 602.

[53] [1999] FCA 1529; (1999) 168 ALR 190, 194 [18].

[54] Kalin, above n 15, 416.

[55] Reinhard Marx, 'The Notion of Persecution by Non-State Agents in German Jurisprudence' (2001) 15 Georgetown Immigration Law Journal 447, 450.

[56] Their Honours observed as follows:

In Minister for Immigration and Multicultural Affairs v Haji Ibrahim, Callinan J and Gummow J left open the question whether the "accountability" theory should be accepted. The submissions made by the Minister in this case ... to a degree seek an acceptance of that theory. However, it is again unnecessary to determine whether the theory should be accepted: Khawar [2002] HCA 14; (2002) 187 ALR 574, 592.

[57] Marx, above n 55, 454 explains the protection-based approach in the following terms:

[a] protection-based approach to the Convention therefore examines whether the claimant has a well-founded fear of persecution by reasons set out in the Convention. If that is the case, it does not matter whether the State has collapsed. Rather, the granting of protection follows the assessment of a well-founded fear.

[58] See references below to Ben Vermeulen et al, Persecution by Third Parties (University of Nijmegen Centre for Migration Law, May 1998) <http://www.jur.kun.nl/cmr/articles/ thirdparties.pdf> at 27 November 2002; Frédéric Tiberghien, 'Persecution by Non-Public Agents' in Refugee and Asylum Law: Assessing the Scope for Judicial Protection (1997) 105; Marx, above n 55; Kalin, above n 15.

[59] Indeed, it was clearly this perception that informs the legislative intent of s 91S of the Migration Act.

[60] RRT Reference N98/21419, [12].

[61] Ibid.

[62] During the hearing of the appeal before the High Court, the extensive and thorough nature of the submissions made on behalf of Ms Khawar was noted: see Transcript of Proceedings, Minister for Immigration & Multicultural Affairs v Khawar S128/2001(High Court of Australia, 13 November 2001).

[63] United States Department of State Bureau of Democracy, Human Rights and Labor, 'Pakistan Country Report on Human Rights Practices for 1997' 30 January 1998 <http://www.americanfriends.org/kashmir/K.12html> at 12 December 2002.

[64] RRT Reference N98/21419.

[65] Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529; (1999) 168 ALR 190, 197 [31] where her Honour endorsed the following statement:

[i]t is only after the relevant particular social group, if any, has been identified that a decision-maker can sensibly give consideration to the question whether the applicant has a well-founded fear of persecution for reason of his or her membership of that particular social group (emphasis omitted).

[66] This reading of her Honour's judgment is consistent with that taken in the Full Federal Court by Lindgren J with whom Mathews J expressed agreement: Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501, 529–30.

[67] As noted above, s 36 of the Migration Act incorporates into Australia's domestic law its obligations pursuant to the Convention.

[68] Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529; (1999) 168 ALR 190, 196 [28], 197 [33].

[69] Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501 (Mathews and Lindgren JJ, Hill J in dissent).

[70] Ibid 533.

[71] Ibid 534.

[72] Islam [1999] UKHL 20; [1999] 2 AC 629, 653.

[73] Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501, 535–6.

[74] Ibid 536 (emphasis omitted).

[75] Khawar [2002] HCA 14; (2002) 187 ALR 574.

[76] Ibid 578 (Gleeson CJ).

[77] Kalin, above n 15.

[78] Antonio Fortin, 'The Meaning of "Protection" in the Refugee Definition' (2001) 12 International Journal of Refugee Law 548.

[79] Atle Grahl-Madsen, The Status of Refugees in International Law vol 1 (1966).

[80] Khawar [2002] HCA 14; (2002) 187 ALR 574, 579–80 where Gleeson CJ termed this protection in the 'narrower sense'.

[81] Ibid 579 where Gleeson CJ termed this protection in the 'broader sense'.

[82] These definitions of external and internal protection are taken from Kalin, above n 15, 425.

[83] Khawar [2002] HCA 14; (2002) 187 ALR 574, 589.

[84] Atle Grahl-Madsen, above n 79, 255.

[85] Khawar [2002] HCA 14; (2002) 187 ALR 574, 580.

[86] Ibid 591. Their Honours took this from United Nations High Commissioner for Refugees, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (2001), fn 81. See also Khawar [2002] HCA 14; (2002) 187 ALR 574, 580 where Gleeson CJ stated:

accepting that, at that point of the Article, the reference is to protection in the narrower sense, an inability or unwillingness to seek diplomatic protection abroad may be explained by a failure of internal protection in the wider sense, or may be related to a possibility that seeking such protection could result in return to the place of persecution.

[87] This originates from Gender Guidelines for the Determination of Asylum Cases in the UK (1998). Refugee Women's Legal Group, <http://www.nadir.org/nadir/initiativ/linksrhein/ archiv/c/c000205.htm#Section3> at 10 December 2002. It was accepted by Lord Hoffman in Islam [1999] 2 AC 628, 653 and Kirby J in Khawar [2002] HCA 14; (2002) 187 ALR 574, 603.

[88] James Hathaway, The Law of Refugee Status (1991) 112.

[89] See Catherine Phuong, 'Persecution by Third Parties and European Harmonization of Asylum Policies' (2001) 16 Georgetown Immigration Law Journal 81, 87–8.

[90] [2000] UKHL 37; [2001] 1 AC 489, 495; see also Adan v Secretary of State for the Home Department [1998] UKHL 15; [1999] 1 AC 293, 304 (Lord Lloyd of Berwick).

[91] Zalzali v Canada (Minister of Employment and Immigration) [1991] 3 FC 605, 609–10.

[92] Butler v Attorney-General [1999] New Zealand Arbitration Reports 205, 216–7.

[93] Khawar [2002] HCA 14; (2002) 187 ALR 574, 603–4.

[94] Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501, 536–7.

[95] Khawar [2002] HCA 14; (2002) 187 ALR 574, 594.

[96] Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501, 533.

[97] Consequently, their Honours' reasoning is not susceptible to the type of criticism that is often made of the accountability theory. For example, it has been suggested that the accountability theory's main weakness is its implicit assumption that refugee law should be informed by the principles of state responsibility that have developed in public international law. In that context, Kalin criticises the accountability theory for 'presuppos[ing] a violation of basic duties by the country of origin, turning every grant of asylum into an implicit accusation against that country': Kalin, above n 15, 423.

[98] See Khawar [2002] HCA 14; (2002) 187 ALR 574, 591, where McHugh and Gummow JJ endorsed the statement of the United Nations High Commissioner for Refugees, above n 86, [36] as follows:

there now exists jurisprudence that has attributed considerable importance in refugee status determination to the availability of state protection inside the country of origin ... [t]his somewhat extended meaning may be, and has been, seen as an additional—though not necessary—argument in favour of the applicability of the Convention to those threatened by non-state agents of persecution.

[99] In this sense, their Honours' approach is consistent with the construction advocated by both Kalin and Fortin and to some extent represents a compromise between the protection-based and accountability theories: see Kalin, above n 15, 431.

[100] Khawar [2002] HCA 14; (2002) 187 ALR 574, 583.

[101] Ibid 582 (Gleeson CJ).

[102] See Leeming, above n 10.

[103] [2000] HCA 19; (2000) 170 ALR 553.

[104] The RRT stated that such disadvantages would include 'denial of access to subsidized food, health and education and all other welfare benefits for many years, probably beyond the time when he turns seven': see the passage from the RRT's reasoning quoted in Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] FCA 622, [11] (French J).

[105] The Full Court of the Federal Court in Chen had concluded that the appellant (the respondent before the Full Federal Court) did not face persecution 'by reason of being a member of the social group of "black children"'. He faced persecution 'by reason of his parents' conduct (as Chinese nationals) in contravening the relevant laws of China: Minister for Immigration and Multicultural Affairs v Chen Shi Hai (an infant) by his next friend Chen Ren Bing [1999] FCA 381; (1999) 92 FCR 333, 342 (O'Loughlin and Carr JJ).

[106] [1998] FCA 622.

[107] [2000] HCA 19; (2000) 170 ALR 553, 562 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); 571–2 (Kirby J).

[108] [2000] FCA 855.

[109] [2000] FCA 855, [26].

[110] [2000] FCA 855, [27]–[32].

[111] [2000] HCA 19; (2000) 170 ALR 553, 569.

[112] Ibid.

[113] Ibid 570.

[114] Ibid.

[115] Ibid 572.

[116] [1999] FCA 381; (1999) 92 FCR 333, 342.

[117] (1998) 87 FCR 112.

[118] Ibid 118.

[119] (1997) 190 CLR 225.

[120] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

[121] (1997) 190 CLR 225, 254.

[122] [1991] HCA 12; (1991) 171 CLR 506, 515.

[123] (1998) 87 FCR 112, 118.

[124] [1998] FCA 622.

[125] [1999] FCA 1768; (1999) 169 ALR 167, 192.

[126] [2000] FCA 645; (2000) 175 ALR 149.

[127] [1999] FCA 205.

[128] [2000] FCA 645; (2000) 175 ALR 149, 161.

[129] Ibid 160.

[130] As noted above, this formulation derives from Chappel v Hart (1998) 195 CLR 232, 255 (Gummow J).

[131] Leonardo Franco, 'Legal Issues Arising from Recent UNHCR Operations: Introduction' in Vera Gowlland-Debbas (ed), The Problem of Refugees in the Light of Contemporary International Law Issues (1996) 3.

[132] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 20 September 2001, 31119-22 (Geoffrey Prosser).

[133] [1997] HCA 22; (1997) 191 CLR 559.

[134] Ibid 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

[135] [2000] HCA 19; (2000) 170 ALR 553, 569.

[136] But see, Mahesparam v Minister for Immigration & Multicultural Affairs [1999] FCA 459, [30] where Madgwick J stated that 'if (imputed) political opinion plays a substantial part in the persecution feared by the applicant, that would be persecution "for reasons of ... political opinion" within the meaning of the Convention' (emphasis added).

[137] As noted, McHugh J endorsed this proposition in Applicant A (1997) 190 CLR 225, 254.

[138] Ibid 231–2.

[139] [2000] FCA 1599; (2000) 105 FCR 548, 565 [80].

[140] Sarrazola (No 4) [2001] FCA 263; (2001) 107 FCR 184, 193.

[141] See Phuong, above n 89, 87–8.

[142] Section 474(1) of the Migration Act provides that '[a] privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account'. Section 474(2) provides that a privative clause decision 'means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)'. As such, s 474(1) applies to all decisions of the RRT and the Migration Review Tribunal.

[143] The High Court is presently reserved on two matters raising the constitutional validity and effect of the privative clause found in s 474 of the Migration Act: Plaintiff S157 of 2002 v The Commonwealth of Australia S157/2002; Applicants S134/2002, Ex parte—Re MIMIA & Anor S134/2002. Judgment was reserved on 4 September 2002.

[144] On 15 August 2002, a specially convened Full Federal Court delivered judgment in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. It dealt with appeals from five first instance judgments dealing with the scope and effect of s 474: Turcan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 397 (Heerey J); Applicant NAAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 263 (Gyles J); Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 281 (Tamberlin J); Jian Zhong Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 (Mansfield J); Ratumaiwai v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 311 (Hill J). The effect of the Full Court's decision in NAAV v Minister was summarized by Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108, an analysis endorsed by the Full Federal Court in NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 300, [23] which stated that '[b]roadly speaking, the effect of s 474(1) is to protect a decision of the RRT from challenge under s 39B(1) of the Judiciary Act provided that the three so-called Hickman conditions are satisfied and the RRT has not contravened an "inviolable statutory condition".'

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