Refugee law in Australia

The Refugee Convention

22.4 Australia is a signatory to the Refugee Convention, the key international instrument that regulates the obligations of states to protect refugees fleeing from persecution. Article 1A(2) defines a refugee as a person who,

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

22.5 The Migration Act incorporates art 1A(2) of the Refugee Convention into Australian domestic law, and gives effect to Australia’s obligation of non-refoulement—not to return a refugee in any manner whatsoever to the frontiers of territories where the person’s life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.^[2] Section 36(2) provides for the grant of a protection visa to a ‘non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.

22.6 The term ‘persecuted’ in art 1A(2) of the Refugee Convention is qualified by s 91R(1) of the Migration Act, which provides that art 1A(2) does not apply unless persecution for one or more of the Convention reason(s) is:

• the ‘essential and significant reason(s), for the persecution’; and

• the persecution involves ‘serious harm’ to the person; and

• the persecution involves ‘systematic and discriminatory conduct’.

22.7 A non-exhaustive list of instances of ‘serious harm’ is provided in s 91R(2) of the Migration Act, including:

• a threat to the person’s life or liberty;

• significant physical harassment of the person;

• significant physical ill-treatment of the person;

• significant economic hardship that threatens the person’s capacity to subsist; and

• denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

22.8 The onshore component of Australia’s Refugee and Humanitarian program allows those who are in Australia to apply for a protection visa.^[3] Primary refugee status determination in Australia is made by a Department of Immigration and Citizenship (DIAC) officer as a delegate of the Minister for Immigration and Citizenship. Unsuccessful applicants can seek merits review by the Refugee Review Tribunal (RRT), and thereafter, judicial review by the courts. Under s 417 of the Migration Act, the Minister may personally consider and grant a visa on humanitarian grounds, if he or she considers it to be in the public interest.^[4] This personal intervention power is only exercisable by the Minister and only in cases where the applicant has exhausted all avenues of merits review.^[5]

Family violence and the definition of a refugee

22.9 Applicants who make asylum claims based on family violence have faced difficulties meeting the definition of ‘refugee’ in art 1A(2) of the Refugee Convention—both internationally, and in Australia. While it is generally accepted that instances of family violence can constitute serious harm, two compounding and interlinking factors have historically excluded victims of family violence from protection under the Refugee Convention. These are family violence claims in the context of gender-related persecution and the public/private dichotomy.

Gender-related claims and the public/private dichotomy

22.10 First, family violence claims have tended to exist within the wider context of gender-specific harm, including: sexual violence, forced marriage, female genital mutilation and honour killings.^[6] These types of harms—generally experienced by women—are not afforded protection because neither gender nor sex is an enumerated Convention ground. Therefore courts have traditionally failed to consider whether such gender-related claims may fall under the ground of particular social group, or other Convention reasons.^[7]

22.11 A more problematic distinction relates to the public/private dichotomy. As Anthea Roberts explained, the Refugee Convention is primarily aimed at protecting individuals from state or public forms of persecution, rather than intruding into the private realm of family life and personal activities.^[8]

22.12 This is most evident in the interpretation of the term ‘persecution’. The Refugee Convention contains no definition of ‘persecution’.^[9] However, the term is widely recognised as involving a certain relation between the individual and the state, whereby persecution occurs in the public sphere and the perpetrators are the state or its agents.^[10] As stated by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Khawar (Khawar):

the paradigm case of persecution contemplated by the Convention is persecution by the state itself. Article 1A(2) was primarily, even if not exclusively, aimed at persecution by a state or its agents on one of the grounds to which it refers.^[11]

22.13 In Applicant A v Minister for Immigration and Ethnic Affairs, the High Court explained that:

The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.^[12]

22.14 As family violence tends to be perpetrated by non-state actors within private relationships, such claims have historically been construed as falling outside the bounds of the Refugee Convention, because the state cannot be implicated in the infliction of that harm. In Equality Before the Law: Justice for Women (ALRC Report No 69) (Equality Before the Law), the ALRC observed that:

Sexual violence against women tends to be seen as occurring in the private rather than public sphere and discounted as persecution … Discriminatory practices may also be seen as ‘private’ where they affect family life. In many cases, most notably in cases of sexual or domestic violence, the nexus between the individual and the state is generally more complex than in ‘public’ forms of persecution. Difficulties arise as to the exact extent of state responsibility.^[13]

The role of state responsibility

22.15 The issue of state responsibility in cases where the harm is inflicted by non-state actors for a non-Convention reason, was clarified by the landmark decision of the High Court in Khawar.^[14]

22.16 In Khawar, the applicant, Ms Khawar, fled Pakistan to Australia with her three daughters, after years of escalating abuse from her husband and his family. She claimed asylum on the basis that the Pakistani authorities (the police) had systematically discriminated against her by failing to provide her protection and that this was tolerated and sanctioned by the state. Thus, it was argued her well-founded fear of persecution was based on the lack of state protection for reasons of her membership of a particular social group—‘women in Pakistan’.

22.17 Her case was rejected by the Department of Immigration, Multiculturalism and Ethnic Affairs and the RRT on the basis that there was no nexus to a Convention ground. The RRT considered that Ms Khawar was harmed for personal reasons arising from her marriage and relationship with her husband, and that the Refugee Convention was not intended to protect people involved in personal disputes. The RRT made no findings in relation to the failure of the police to provide protection or the Pakistani state’s attitude towards a particular social group comprised of women.^[15]

22.18 On appeal to the Federal Court, Branson J found that the RRT had erred in not making findings in relation to any particular social group of which Ms Khawar might be a member.^[16] As a consequence, the RRT committed a further error in not making any findings about the lack of state protection in relation to a particular social group of which Ms Khawar was a member.^[17] The Full Federal Court dismissed an appeal from Branson J’s decision.^[18]

22.19 On appeal to the High Court, two issues were in dispute. These were summarised by Gleeson CJ in the following terms:

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

The second issue is whether women or, for the present purposes, women in Pakistan may constitute a particular social group within the meaning of the Convention.^[19]

22.20 In separate judgments, the majority answered both questions in the affirmative. Gleeson CJ held that persecution may result where the criminal conduct of private individuals is tolerated or condoned by the state in circumstances where the state has the duty to provide protection against harm.^[20]

22.21 Kirby J adopted the formula, ‘Persecution = Serious Harm + The Failure of State Protection’,^[21] to find that it was: ‘sufficient that there is both a risk of serious harm to the applicant from human sources, and a failure on the part of the state to afford protection that is adequate to protect the human rights and dignity of the person concerned’.^[22] He considered that ‘persecution’ is a construct of these two separate but essential elements. McHugh and Gummow JJ found that ‘the persecution in question lies in the discriminatory inactivity of the State authorities in not responding to the violence of non-state actors’.^[23]

22.22 Although the judgments took different approaches, the cumulative effect appears to be that, where serious harm is inflicted by non-state actors for a non-Convention reason, the nexus to the Refugee Convention is met by the conduct of the state in withholding protection—in a selective and discriminatory manner—for reasons of a Convention ground.

22.23 On the issue of particular social group, McHugh and Gummow JJ held that the evidence supported a social group, that was, ‘at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by members of the household’.^[24] Gleeson CJ considered that it was open on the evidence to conclude that ‘women in Pakistan’ comprise a ‘particular social group’ within the Refugee Convention ground.^[25]

The position of victims of family violence post-Khawar

22.24 While the principle in Khawar hasallowed family violence claims greater opportunity to be considered, subsequent cases before the RRT and the Federal Court have highlighted that such cases remain complex and challenging for decision makers and applicants alike. In particular, findings of fact as to what comprises a ‘particular social group’, and whether the state has withdrawn protection for a Convention reason, must be made on a case by case basis, requiring an in-depth understanding of the applicants’ claims and the country information.^[26]

22.25 First, proving that a state is withdrawing or withholding protection for a Convention reason in a selective and discriminatory manner may be particularly difficult for those asylum seekers facing language barriers, lack of legal representation or access to current country information.^[27] The courts have made it clear that, where the state is unable to provide effective protection for reasons of maladministration, incompetence or ineptitude, ‘that would not convert the personally-motivated domestic violence into persecution on one of the grounds set out in Article 1A(2)’.^[28] In such cases, those who are victims of family violence have no recourse to protection under the Refugee Convention.

22.26 Secondly, much depends on how an applicant argues that he or she is member of a particular social group. In each instance, it is for the applicant to present the case to the decision maker. Claims that define the particular social group too broadly risk a finding that the harm feared is not motivated by their membership of that particular social group. On the other hand, claims that define the particular social group too narrowly risk a finding that the group is impermissibly defined by the harm feared.^[29]

22.27 Decision makers also face challenges in making consistent decisions. For example, the consideration of whether the applicant is a member of a particular social group is dependent on the cultural, legal, social and religious factors that must be properly understood. Decisions about whether a victim of family violence can access ‘effective state protection’ therefore depends on access to current and up-to-date country information. As Gleeson CJ emphasised in Khawar:

An Australian court or tribunal would need to be well-informed about the relevant facts and circumstances, including cultural conditions, before reaching a conclusion that what occurs in another country amounts to persecution by reason of the attitudes of the authorities to the behaviour of private individuals; but if, after due care, such a conclusion is reached, then there is no reason for hesitating to give effect to it.^[30]

Legislative response to Khawar

22.28 Section 91R of the Migration Act, set out above, was inserted in response to concern that decisions such as Khawar had widened the application of the Refugee Convention ‘beyond the bounds intended’.^[31] Consequently, commentators have argued that s 91R has made it more difficult to sustain claims for protection on family violence grounds.

22.29 Section 91R(1) requires the applicant to show that the Convention reason is ‘the essential and significant reason’ for the persecution.^[32] Catherine Hunter argues that, in the context of gender-related claims, the ‘essential and significant’ requirement will mean decision makers are likely to focus on aspects other than gender, until gender-related decisions are no longer controversial.^[33] This concern is echoed by Leanne McKay, who states that applicants have ‘difficulty articulating their claims in asylum terms that are assessable by decision-makers due to shame or fear’^[34] and, therefore,

due to the restrictive terminology of s 91R … there is now a risk that certain Refugee Convention reasons may not be identified or adequately addressed, resulting in legitimate claims going unrecognised.^[35]

22.30 Others have criticised the definition of persecution under s 91R(2) of the Migration Act for its failure explicitly to recognise psychological harm as serious harm, and the impact that this may have for victims of sexual violence and abuse.^[36] In particular, such victims can experience serious psychological trauma even where there are minimal physical injuries.^[37] Another concern is that s 91R(2) makes no reference to the failure of state protection as being an element of persecution and thus appears to direct decision makers towards cases where persecution emanates from the state.^[38]

Submissions and consultations

22.31 In the Issues Paper, Family Violence and Commonwealth Laws—Immigration Law, ALRC Issues Paper 37 (2011) (the Migration Issues Paper), the ALRC asked what, if any, legislative amendments are necessary to the Migration Act 1958 (Cth) to ensure the safety of those seeking protection in Australia as victims of family violence.^[39]

22.32 Submissions that addressed this question expressed concern that the definition of ‘serious harm’ under s 91R of the Migration Act did not specifically address the experiences of victims of family violence.^[40] Some submissions called for amendments to s 91R specifically to recognise gender-based claims,^[41] and to recognise that ‘serious harm’ may include family violence coupled with the lack of state protection.^[42] In a joint submission, Domestic Violence Victoria and others submitted that:

The definition of ‘serious harm’ under s 91R(2) of the Migration Act provides a non exhaustive list of instances which may be considered serious harm. Gender based persecution can be read into several aspects of the s 91R(2) definition, however there remain barriers to decision makers doing so. In these circumstances given the particular vulnerability of women seeking asylum and the particular difficulties they face in doing so, the definition of serious harm under s 91R(2) should be expanded to explicitly include gender based persecution.^[43]

22.33 In contrast, the Migration and Refugee Review Tribunal were of the view that no legislative changes were necessary, as family violence claims are covered where serious harm is inflicted for reasons of membership of a particular social group, including harm inflicted through selective withholding of state protection:

Decisions on whether harm suffered for reasons of membership of a particular social group will necessarily differ from case to case, as the definition of a refugee requires consideration of the individual circumstances of each case. This includes consideration of whether the postulated social group constitutes a ‘particular social group’ in the particular context. Although, as the Issues Paper notes, section 91R of the Migration Act 1958 does not expressly acknowledge either psychological harm or the capacity of a failure of state protection to constitute persecution, these are well established in Australian law as being sufficient to meet the definition of a refugee. In the Tribunal’s view legislative changes are not necessary to enable the potential recognition of persons fleeing family violence.^[44]

22.34 In the joint submission from Domestic Violence Victoria and others, the Asylum Seeker Resource Centre (ASRC) stated that it had often observed a lack of consistency in decision making at DIAC and RRT stages, and argued that this could be remedied through the adoption of gender guidelines in the Migration Act and Migration Regulations:

The ASRC has often observed a lack of consistency in decision making at DIAC and at the RRT. Decisions on gender related claims for women in very similar situations from the same country are often different depending on the decision maker. Whilst we commend the Department of Immigration and the Refugee Review Tribunal for creating gender and vulnerability guidelines which are useful for the treatment of gender related claims, these guidelines are rarely applied in practice, particularly by delegates of the Minister for Immigration and Citizenship.

… Given the rarity with which these guidelines are applied in practice, particularly at the DIAC stage, it is essential that these guidelines be adopted within the Migration Act and Regulations in order to mandate consideration of those guidelines in practice and create some accountability amongst decision makers who fail to do so.^[45]

ALRC’s views

22.35 In light of the decision in Khawar, refugee law in Australia can provide protection for victims of family violence where there is serious harm, coupled with the failure of state protection. Section 91R of the Migration Act does not provide an exhaustive list of types of harm that may constitute ‘serious harm’, and while it does not expressly acknowledge psychological harm or the failure of state protection, the ALRC considers that this is well established in Australian law.

22.36 However, the ALRC is concerned that, given the complexities in gender-related claims, there is potential for inconsistency in decision making between different decision makers. This may derive from lack of sensitivity or knowledge of decision makers, or a failure properly to consider the gender guidelines when making decisions. Accordingly, the ALRC considers that there are a number of options for reform that may assist in improving consistency in decision making and, ultimately, better protect the safety of victims of family violence.

22.37 First, the ALRC considers that the gender guidelines made by the RRT and DIAC are particularly useful in giving context to, and guiding decision makers in the assessment of, family violence-related claims. The DIAC guidelines, for example, address many particularities in relation to gender-related claims including:

• guidance on the nature of gender-related persecution including, among other things, that such persecution may include ‘violence against women, including family and sexual violence such as rape where the state is unwilling or unable to provide protection’;^[46]

• sexual violence and harm perpetrated in the ‘private sphere’ or by non-state agents can also amount to persecution;^[47]

• where an applicant fails to seek state protection, officers should investigate why no protection was sought. Where particular types of violence may be officially condemned or illegal but in practice tolerated by local authorities, the inability or failure to request protection may indicate a failure of state protection.^[48]

22.38 Secondly, ensuring that decision makers are sensitive to gender-related claims is another important measure in improving consistency in decision making and ensuring the safety of victims of family violence. To this end, the ALRC makes proposals in Chapter 20 in relation to education and training for decision makers about the nature and dynamics of family violence in the context of migration law. The ALRC envisages that such training and education could also incorporate the intersection between refugee law and family violence and the application of the gender guidelines.

22.39 Finally, ensuring that the guidelines are properly considered by decision makers could be achieved by way of a Ministerial Direction under s 499 of the Migration Act.^[49] Such directions would be binding on decision makers—at both primary and review levels—and could require that, in cases of gender-related claims, decision makers must have due regard to the gender guidelines, either in whole or in part. The ALRC notes, for example, that similar directions currently exist in student visa cancellation cases, directing that visa decisions makers—when deciding whether a breach of the visa condition was due to exceptional circumstances—must have due regard to a number of factors.^[50]

22.40 Overall, requiring decision makers to have regard to the gender guidelines, complemented by education and training, will improve consistency and accountability in decision making with respect to gender-related claims involving family violence, with better outcomes to ensure the safety of victims of family violence.