International instruments and law considered
International Covenant on Civil and Political Rights
Convention on the Elimination of All Forms of Discrimination against Women
Convention relating to the Status of Refugees (Refugees Convention)
Migration Act 1958 (Commonwealth)
Ms Khawar (K), a Pakistani national, was married with two young children. In 1997 she and the children arrived in Australia and K sought protection as a refugee on the ground that she had been a victim of serious and prolonged domestic violence on the part of her husband and members of his family, that the police in Pakistan refused to enforce the law against such violence or otherwise offer her protection, and that such refusal is part of systematic discrimination against women which is both tolerated and sanctioned by the state. Accordingly, it was argued, she satisfied the definition of a refugee: she held a well founded fear of persecution on the basis of her membership of a social group: the social group was ‘women in Pakistan’ and K feared persecution on that basis because the state tolerated or permitted domestic violence against women.
The Immigration authorities refused K’s application for a protection visa. She appealed to the Refugee Review Tribunal (the Tribunal), which affirmed the decision made by Immigration. In coming to their decision, the Tribunal concluded that K was the subject of private harm inflicted for personal reasons by her husband and his family, rather than persecution by the state. The Tribunal therefore declined to make any finding as to whether K fell within a social group, or whether the state did tolerate or condone domestic violence, as these allegations could not assist her case.
The matter was eventually considered on an appeal to the High Court of Australia.
• Whether the failure of a country to provide protection against domestic violence to its women nationals, in circumstances where the motivation of the perpetrators of the violence is private, can result in persecution of the kind referred to in Article 1A(2) of the Refugees Convention.
• Whether women in Pakistan constitute a particular social group within the meaning of the Refugees Convention.
By a majority of 4 to 1, the Court sent the matter back to the Tribunal to make findings on the two outstanding issues. On the material available to it, it would be open to the Tribunal to find in K’s favour on both issues and this would be sufficient to establish her claim to protection.
It held that the protections contained in the Refugees Convention addressed in the main persecution by the State or agents of the State on grounds specifically prescribed, namely race, religion, nationality, political opinion or membership of a particular social group. However the Court went on to say that Australia could owe protection obligations to victims of serious violence inflicted by non-state agents where the State had a duty to act and protect but for some reason or another was unwilling to act. In other words, persecution could consist of the harm inflicted by the husband and his family together with the failure of the State to protect K from such harm.
The court further held that the harm to the victim or unwillingness to act or protect must be due to the victim’s membership of one of the groups specifically referred to in Article 1A(2). It found that Pakistani women could constitute a particular social group and that the size of the group was not material to this finding. It is power not numbers that creates conditions in which persecution may occur.
The High Court of Australia recognised the failure of the state to protect women from family violence and other forms of gender violence as a basis of asylum. The case is similar to the UK House of Lords case, R v Immigration Appeal Tribunal; Ex parte Shah  UKHL20, which recognised gender-related persecution in granting asylum for a woman who was subject to violence from her husband and his political affiliates. In that case, the court found that Pakistan did in fact tolerate and sanction domestic violence, as K had alleged in the Australian case.
This approach is consistent with the European Human Rights Court decision in Opuz vs Turkey, recognising that the State can be liable for failing to provide an effective remedy for victims of gender-based violence committed by non-state actors. It challenges the traditional ‘vertical application’ of Human Rights – that only States are bound to observe human rights standards – which previously limited States’ responsibility for women survivors of domestic violence.
The failure to protect women in these cases is also discriminatory, and so contrary to the principle of non-discrimination set out in the International Bill of Rights (UDHR, ICESCR and ICCPR) and CEDAW. The United Nations Commissioner for Refugees (UNHCR) has also recognised that the Refugee Convention was not intended to discriminate on the basis of gender.
Pacific statistics generally show high rates of domestic violence that is tolerated and legitimised through community attitudes, gaps in the legal framework and often lack of action by state mechanisms. If these gaps in the legal framework and lack of action by the responsible mechanisms are discriminatory, then Pacific governments may also be in breach of their obligations. These obligations may arise under national constitutions, at least where they prohibit sex or gender discrimination. Alternatively, most Pacific island countries have ratified CEDAW or one of the instruments that make up the International Bill of Rights and therefore in principle are committed to eliminating gender-discriminatory practices in law, policy and practice.