Minister for Immigration and Multicultural Affairs v Khawar

Minister for Immigration and Multicultural Affairs v Khawar - [2002] HCA 14 - HCA 2002 case summary — Zoe

[15]

Ms Khawar and her children arrived in Australia in June 1997, and lodged applications for protection visas in September 1997. In February 1998, a delegate of the appellant refused the applications. The respondents sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). In January 1999, the Tribunal affirmed the delegate's decision.
There was anonymous information before the Tribunal that Ms Khawar's claim that she was a victim of abuse, and that she had a fear of persecution, was bogus and, by implication, that she and her husband were colluding. The Tribunal did not make findings as to the truth of that information, and dealt with the matter upon the basis that the allegations of abuse were true. Because the Tribunal considered that, even on that basis, the claim to refugee status was fundamentally flawed, for reasons that will appear, it was regarded as unnecessary to make findings on the allegations of fabrication.
There are two presently relevant factual issues, or potential issues, as to which the Tribunal received information, but about which it made no findings. The failure to make such findings was related to the legal approach which has given rise to the present appeal.
First, Ms Khawar gave evidence of four occasions on which she approached the police, alone or together with a male relative, to complain of the violence from which she was suffering. On each occasion the police response, she said, was one of indifference and refusal to help. The Tribunal did not decide whether to accept that evidence.
Secondly, Ms Khawar's solicitor filed a submission that included, under the heading "Country Context", material concerning "the position of women in Pakistani society and culture generally." That included extracts from reports of the United States State Department, the Canadian Immigration and Refugee Board, Amnesty International, and the Australian Department of Foreign Affairs and Trade. Much of the information was to the same effect as the facts that were found, and were ultimately before the House of Lords, in R v Immigration Appeal Tribunal, Ex parte Shah[3]. In that case, Lord Steyn said[4]:

[17]

Again, the Tribunal made no findings as to whether that information was true, because it considered that, even if it were true, the claim to refugee status must fail.
The Tribunal's decision was given before the House of Lords decided Ex parte Shah. The essence of the Tribunal's reasoning was that, even if Ms Khawar's claims as to her treatment by her husband and his family were true, those harming her were not motivated by her membership of any particular social group, but by purely personal considerations related to the circumstances of her marriage, the fact that she brought no dowry to the family, and their dislike of her as an individual. The reasoning proceeded on the assumption that the alleged persecution, if any, consisted solely of the conduct towards Ms Khawar of her husband and his relatives. That conduct was not for reasons of race, religion, nationality, political opinion, or membership of a particular social group, even if women constituted such a group. It was for personal reasons. On that approach, the attitude of the Pakistani police, or of the Pakistani state, was incapable of turning the inflicting of harm for reasons having nothing to do with any of the grounds set out in Art 1A(2) into persecution for one of the reasons stated.
There was an appeal to the Federal Court of Australia, which came before Branson J, who concluded that the Tribunal had erred in law in its interpretation of the Convention definition of refugee and in its failure to make findings on the two issues of fact earlier mentioned[5]. The matter was referred back to the Tribunal for further consideration according to law. The Minister appealed to the Full Court of the Federal Court. By majority (Mathews and Lindgren JJ; Hill J dissenting), the appeal was dismissed[6].
In this Court, with reference to the first of the two legal issues earlier identified, the appellant's counsel argued, as his "central proposition", 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. It was acknowledged that, if that proposition were wrong, and if the second legal issue were also decided in favour of the respondents, the orders of Branson J must stand, and the matters would need to go back to the Tribunal for further findings of fact.
Since the first issue turns largely upon the concepts of state protection and persecution, and upon whether, as the respondents contend, they are interrelated, or whether, as the appellant insists, they must be considered separately, it is necessary to examine those concepts.

[22]

His Lordship went on to quote Dawson J in Applicant A[10], who said that it was a well-accepted fact that international refugee law was meant to serve as a substitute for national protection where such protection was not provided due to discrimination against persons on grounds of their civil or political status.
The narrower sense in which "protection" is used is that of diplomatic or consular protection extended abroad by a country to its nationals. As Professor Kälin has demonstrated[11], the history of the Convention and textual considerations suggest that, in Art 1A(2), in the expression "the protection of that country", the word "protection" is used in this sense. The historical background to the Convention includes the 1946 Constitution of the International Refugee Organisation, which referred to external protection and viewed a refugee as a person having no consul or diplomatic mission to whom to turn. The drafting history appears to support Professor Kälin's view. And the inability or unwillingness of the refugee referred to in Art 1A(2) to avail himself of the protection of his country, by hypothesis, occurs when he is outside his country. It does not follow, however, that the broader sense of protection is irrelevant to Art 1A(2).
It is accepted in Australia, and it is widely accepted in other jurisdictions[12], that the serious harm involved in persecution may be inflicted by persons who are not agents of the government of the country of nationality referred to in Art 1A(2). However, 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. Bearing that in mind, there is a paradox in the reference to a refugee's inability or unwillingness to avail himself of the protection of his persecutor. But 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. During the 1950s, people fled to Australia from communist persecution in Hungary. They did not, upon arrival, ask the way to the Hungarian Embassy.
The opening portion of Art 1A(2) postulates that a putative refugee is outside the country of his nationality owing to a fear of persecution. That contemplates a fear of persecution within the country of his nationality. It is "such fear" that makes the person unwilling to avail himself of the protection of his country. It is not a fear of being persecuted by the country's diplomats that causes the unwillingness; although the possibility that if he puts himself in their hands he may be returned to his own country may be a consideration.
When a national of another country applies, under the Act, for a "protection visa", claiming that Australia "has protection obligations" under the Convention, and contends that his or her case falls within Art 1A(2), unwillingness to seek the diplomatic protection of the country of nationality may be self-evident. But on the questions whether persecution is a threat, (which usually involves consideration of what has occurred in the past as a basis for looking at the future), and whether such persecution is by reason of one of the Convention grounds, and whether fear of persecution is well-founded, the obligation of a state to protect the fundamental rights and freedoms of those who are entitled to its protection may be of significance. The reasons for this will be considered in dealing with the concept of persecution.
In the present case, Ms Khawar does not rely upon mere inability of the police and other authorities of Pakistan to protect her against personally motivated violence. She claims that the violence is tolerated and condoned; not merely at a local level by corrupt, or inefficient, or lazy, or under-resourced police, but as an aspect of systematic discrimination against women, involving selective enforcement of the law, which amounts to a failure of the state of Pakistan to discharge its responsibilities to protect women. She may not be able to make good her claim. The Tribunal has not yet found the necessary facts. But, as the case of Ex parte Shah shows, it is possible that she might be able to establish the facts she alleges.
As her case is argued, and as a matter of principle, it would not be sufficient for Ms Khawar to show maladministration, incompetence, or ineptitude, by the local police. That would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2). But if she could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then it would not be an answer to her case to say that such a state of affairs resulted from entrenched cultural attitudes. 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 attitude 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.

[23]

Article 1A(2) does not refer to any particular kind of persecutor. It refers to persecution, which is conduct of a certain character. I do not see why persecution may not be a term aptly used to describe the combined effect of conduct of two or more agents; or why conduct may not, in certain circumstances, include inaction.
Whether failure to act amounts to conduct often depends upon whether there is a duty to act. Sometimes, for example, silence, where there is an obligation to speak, might bear a positive as well as a negative aspect. In some circumstances, silence in the face of an accusation can amount to an admission. Or failure to contradict what somebody else says might, in some circumstances, involve a representation that what is said is true. It depends upon the circumstances; and a relevant circumstance might be what would ordinarily be expected, or whether the person who remains silent has a legal or moral duty to speak. Similarly, the legal quality of inaction in the face of violence displayed by one person towards another might depend upon whether there is a duty to intervene. If X sees A assaulting B, then there may be no duty upon X to intervene, and the mere failure to do so might not amount to conduct of any description. But if A and B are schoolchildren, and X is a teacher responsible for their supervision, the failure to intervene will take on a different complexion.
If there is a persecutor of a person or a group of people, who is a "non-state agent of persecution", then the failure of the state to intervene to protect the victim may be relevant to whether the victim's fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.
The 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. As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation. In Ex parte Shah[13], Lord Hoffmann, in giving the example of the Jewish shopkeeper set upon with impunity by business rivals in Nazi Germany, referred to the failure of the authorities to provide protection, based upon race, as an "element in the persecution"[14]. The same expression was used by Lord Hope of Craighead in the passage from Horvath quoted above.
Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. In relation to the case which Ms Khawar seeks to make out, the decision in Ex parte Shah in this respect is directly in point[15]. If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group, if it be the case that women in Pakistan may be so described.

[24]

In my view, it would be open to the Tribunal, on the material before it, to conclude that women in Pakistan are a particular social group.
The size of the group does not necessarily stand in the way of such a conclusion. There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur. In some circumstances, the large size of a group might make implausible a suggestion that such a group is a target of persecution, and might suggest that a narrower definition is necessary. But I see nothing inherently implausible in the suggestion that women in a particular country may constitute a persecuted group, especially having regard to some of the information placed before the Tribunal on behalf of Ms Khawar. And cohesiveness may assist to define a group; but it is not an essential attribute of a group. Some particular social groups are notoriously lacking in cohesiveness.
In Applicant A[16], McHugh J explained why the persecutory conduct itself cannot define the particular social group in question for the purposes of Art 1A(2), but went on to add that the actions of the persecutors may serve to identify or even cause the creation of such a group[17]. He held that couples in China who want to have more than one child, contrary to the one child policy, were not a particular social group, as there was no social attribute or characteristic which linked them independently of the alleged persecutory conduct.
Women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments. Neither the conduct of those who perpetrate domestic violence, or of those who withhold the protection of the law from victims of domestic violence, identifies women as a group. Women would still constitute a social group if such violence were to disappear entirely. The alleged persecution does not define the group.

[37]

The first respondent, Mrs Khawar, is a citizen of Pakistan. She arrived in Australia with her three children, the second, third and fourth respondents, on 17 June 1997. The respondents had been issued Australian visitor visas on 5 June 1997 which permitted a single entry to, and a three-month stay in, Australia. On 16 September 1997, the day prior to the expiry of that three-month period, the first respondent lodged an application for protection visas for herself and her children. On 4 February 1998 a delegate of the Minister refused to grant the protection visas sought. Mrs Khawar then applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The decision of the Tribunal affirming the decision of the delegate was given on 11 January 1999.
The issue before the Tribunal was whether Mrs Khawar possessed a well‑founded fear of persecution for reasons of membership of a particular social group. Mrs Khawar claimed that in Pakistan she was a target of domestic violence at the hands of her husband and, to a more limited extent, of his family. Mrs Khawar married in 1980. She completed about 11 years schooling, and speaks, reads and writes Urdu, and also reads and writes some English. Her evidence detailed instances of abuse beginning in about 1986 and increasing in severity over a period of years. It is sufficient to note that the abuse included slappings, beatings which led to her hospitalisation, a threat to throw acid on her and a threat to kill her by setting fire to her. On one occasion her husband had doused her with petrol, an activity which had ceased only when a neighbour had arrived in response to the screams of Mrs Khawar and her children.
The Tribunal referred to two letters, written anonymously, which alleged that Mrs Khawar's case was false, and that her husband had followed her to Australia in August 1997 and was on good terms with her. Mrs Khawar denied these allegations but the Tribunal did not express any conclusion on the matter. However, the Tribunal stated that it was "willing to accept that [Mrs Khawar's] claims about the violence she suffered at the hands of her husband [were] true".
Nevertheless, the Tribunal found that Mrs Khawar's husband "was not motivated to harm her because she was a member of a particular social group". In particular, the Tribunal found that "[s]he was not harmed because she was a member of any of the particular social groups proposed by [Mrs Khawar's] adviser: 'women'; 'married women in Pakistan'; 'married women in Pakistan without the protection of a male relative'; 'married women in Pakistan separated from one's husband and without the protection of a male relative'; 'married women in Pakistan suspected of adultery'; or 'women who have transgressed the mores of Pakistani society'". The Tribunal found that she had been harmed because the family of Mrs Khawar's husband:

[39]

The Tribunal therefore found that Mrs Khawar "was not harmed for a Convention reason". It should be noted that the Tribunal appears to have considered that the harm suffered by Mrs Khawar was of sufficient severity to come within the meaning of the expression "persecution". However, the Tribunal did not indicate whether it accepted material put forward by Mrs Khawar's solicitor which would tend to show a systemic failure by police authorities in Pakistan to investigate or lay charges in respect of complaints by women of domestic violence against them.
Mrs Khawar applied to the Federal Court for review of the Tribunal's decision on the ground that that decision involved an error of law within the meaning of s 476(1)(e) of the Act[29]. That error of law was said to arise from the failure of the Tribunal to make findings of fact respecting the claims made by Mrs Khawar that she had reported incidents of the domestic violence to the police and that "the police failed to provide any, or any effective protection". Mrs Khawar had claimed that she had been to the police to report the incidents of violence on four occasions and that on each occasion the police either had refused to take the complaint or had failed to take the complaint seriously. The notion of failure by State authorities to provide "protection" to their nationals whilst they are within the territory of the State is important for this litigation.
The Federal Court (Branson J) set aside the decision of the Tribunal and referred the matter to the Tribunal "for further consideration according to law". In her reasons for judgment[30], her Honour found that the Tribunal had made "no findings of fact concerning [Mrs Khawar's] claim that she was unable to obtain police protection in respect of the violence experienced by her". Branson J also found that the Tribunal had failed to determine whether Mrs Khawar was a member of a particular social group in Pakistan within the meaning of the Convention and said[31]:

[44]

The references to "protection" and "protection obligations" invite attention to the construction of s A of Art 1 of the Convention and, in particular, to the passage "[any person who] owing to well‑founded fear of being persecuted for reasons of … membership of a particular social group … 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".
This passage presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality "owing to" fear of persecution for reasons of membership of a particular social group, which is well founded both in an objective and a subjective sense[35]. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself "of the protection of" the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition.
The definition of "refugee" is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to "protection" is to "external" protection by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of "internal" protection provided inside the country of nationality from which the refugee has departed.
Further, it is significant that sub‑s (2) of s A of Art 1 of the Convention goes on to deal specifically with the situation of persons who lack a nationality. The requirement is stated as applying to one:

[72]

In Chan v Minister for Immigration and Ethnic Affairs[58], Mason CJ pointed out that (i) the Convention necessarily contemplates in the definition of "refugee" that there is a real chance that the person in question will suffer "some serious punishment or penalty or some significant detriment or disadvantage" if that person returns to the country of nationality; (ii) some forms of selective or discriminatory treatment by a State of its citizens will not amount to persecution; (iii) harm or threat of harm "as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason"; and (iv) such harm or threat of harm may be constituted by the "denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned". In Haji Ibrahim[59], McHugh J again made the point that, whilst persecution involves discrimination that results in harm to an individual, not all discrimination will amount to persecution.
In a number of previous cases in this Court, in particular Chan, Applicant A v Minister for Immigration and Ethnic Affairs[60] and Chen Shi Hai v Minister for Immigration and Multicultural Affairs[61], the issues have turned significantly upon the application to the persons claiming refugee status of certain laws of the country of their nationality and the existence of well-founded fears as to the enforcement against them of those laws. Here, the situation is rather different. The laws of Pakistan which are involved have not specifically been identified but may be taken to be criminal laws of a general application respecting serious assault by one individual upon another. Mrs Khawar complains not of her harassment by the selective enforcement against her of those laws but, to the contrary, of the significant detriment or disadvantage she suffers from the alleged failure by the Pakistani police authorities to enforce the criminal law against those who break those laws, in particular against those who inflict domestic violence upon her. In that sense, she complains of discrimination which amounts to persecution.
The selective enforcement of a law of general application may result in discrimination between complainants which produces, in the legal sense, discrimination against one group of complainants. In Street v Queensland Bar Association, when dealing with the phrase "disability or discrimination" in s 117 of the Constitution, Gaudron J said[62]:

[75]

The harm amounting to persecution which has been identified above must be suffered for a Convention reason. The case put here is that Mrs Khawar was a member of a particular social group in Pakistan. Again, the Tribunal failed to make the necessary finding. It failed to determine whether Mrs Khawar was a member of such a group. It was open to the Tribunal on the material before it to determine that there was a social group in Pakistan comprising, 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 the members of the household. Other formulations have been referred to earlier in these reasons and nothing said here is intended to foreclose a finding that a group so defined existed. This is a matter for the Tribunal on reconsideration of the case.
It may be that the members of a group under any of the above formulations are very numerous. However, the inclusion of race, religion and nationality in the Convention definition shows that that of itself can be no objection to the definition of such a class. Applicant A establishes that disagreement with a law of general application and fear of the consequences of the failure to abide by that law does not, on that account, constitute the persons in question a social group within the meaning of the Convention definition[63]. That has no bearing upon the present case. Nor does the proposition, which also is to be derived from Applicant A[64], that ordinarily the enforcement of a generally applicable criminal law will not constitute persecution of a social group constituted by those against whom that law is enforced.
Applicant A indicates that the particular social group cannot be defined solely by the fact that its members face a particular form of persecution so that the finding of membership of the group is dictated by the finding of persecution. Those considerations do not control the present case. The membership of the potential social groups which have been mentioned earlier in these reasons would reflect the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships. The alleged systemic failure of enforcement of the criminal law in certain situations does not dictate the finding of membership of a particular social group.

[78]

Most of the facts relevant to my reasons are contained in the reasons of Gleeson CJ[73] and of McHugh and Gummow JJ[74]. So is the applicable legislation[75], details of the course of the proceedings below[76] and a statement of the issues argued before this Court[77]. I will avoid unnecessary repetition.
In order to appreciate the significance of the omission in fact-finding committed by the Tribunal in approaching the application made by Mrs Naima Khawar ("the respondent"), it is important to appreciate that the Tribunal, for the purposes of its decision, was willing to accept as true her claims about the violence that she had suffered at the hands of her husband and members of his family. It is also relevant to note the Tribunal's express findings in relation to the failure of the Pakistani governmental authorities (principally the police) to provide protection to the respondent. The respondent stated that she had gone to the police on four occasions to report the incidents of violence of which she complained[78]:

The first time was before May 1995. According to the respondent, the police refused to accept and act upon her complaint, telling her that such incidents were occurring throughout the country and that they could do nothing about them.
The respondent stated that she went a second time in November 1996, after her husband threatened to burn her alive. Because she had heard reports about such burning incidents and because her situation had become critical, she had started to take the threats seriously. She was accompanied on the second occasion by her sister's husband, saying that she hoped that she would be taken more seriously because accompanied by a man. Although the police officer took a report, the respondent stated that he did not write down her story accurately. According to the respondent he did not seem to take her complaint seriously. When the respondent's husband returned home that evening, he allegedly told her that he knew of the police report and warned her that the police could do nothing.
In January 1997, the day after her husband beat her after she had questioned him about his seeing another woman, the respondent stated that she had again gone to the police with her brother-in-law. Again what was written by the police officer who took the report was grossly inaccurate.
After an incident in March 1997 in which her husband and his brother poured petrol on her, the respondent stated that she had again gone to the local police station. The officer told her that women always tried to blame their husbands for problems for which they themselves were the real cause, and that she should sort out her "own work".

[79]

In addition to this personal account of the respondent's experiences of neglect, indifference and inaction concerning her attempts to invoke the protection of the law in the form of the police to whom the respondent had made her reports, her case before the Tribunal included substantial, and apparently authentic and reliable, material concerning the negative attitude of the Pakistani authorities to complaints by women in a position similar to the respondent.
It can be assumed that the foregoing material had been tendered to the Tribunal to meet a contention for the Minister that the respondent's reason for leaving Pakistan (and consequent reluctance to return there) was a purely private affair concerning domestic disagreements between her husband, his family and herself. Such a reason would not qualify for consideration as entitling the respondent to a protection visa on the ground of refugee status. The respondent did not submit otherwise. Instead, it was her contention that what had happened to her was but an instance of the general withdrawal from women in her position in Pakistan of the protection of the law that would, by implication, have been available to a man threatened with comparable acts of violence and personal affront.
The material tendered to the Tribunal was substantial. The respondent relied upon it to establish that the neglect by police in her case derived from a policy or general practice of withdrawing police protection from women like her and not for some other reason (such as lack of police resources, default of individual police officers, influence of the husband's family, financial corruption and so forth). The material included extracts from:

a report of the Canadian Immigration and Refugee Board, Human Rights Briefs: Women in Pakistan, reviewing the many changes to the law of Pakistan introduced after 1977 during the military regime of General Zia ul-Haq, including to the Law of Evidence (Qanun-e Shahadat) devaluing the testimony of female as against male witnesses and alteration of the criminal law with respect to retribution (Qisas-e Divat) extending the area of legal discrimination against women in cases of murder, bodily injury and abortion and reducing by half the compensation payable where the victim of such crimes was female;
a 1994 cable from the Australian Department of Foreign Affairs and Trade concerning oven burns leading sometimes to death of wives, especially in rural districts of Pakistan and often related to disputes over dowry payments by the wives' families. In this cable, the police response and protection was described as "minimal";
a 1995 report from Amnesty International, Women in Pakistan - Disadvantaged and Denied Their Rights;
a 1997 United States State Department report on the general practice of Pakistani police to return battered wives to abusive husbands;
a 1998 report from the United States State Department on the general status of women in Pakistan. The report included information on the limitations on the admission and weight given to the testimony of women in court; the non-reporting by hospitals of so-called "stove deaths" involving women and, where such reports were made, the reluctance of police to investigate them or to lay charges or even to arrange for post mortem examinations to be conducted; and the killing and mutilation by male relatives of women accused or suspected of adultery, rarely with police intervention or effective court action or legal redress.

The phenomenon of burning of women in the position of the respondent is also described in academic literature in the Indian subcontinent[79] and is sometimes linked historically to the same sources of female submission and subjugation evidenced in the practice of sati which was abolished during British rule[80].

[80]

The Tribunal concluded that the respondent was not harmed because she was a member of a "particular social group" but because of her husband's family's anger about the shame that she had caused her husband by getting him to marry her instead of a bride chosen by the family and because she brought no dowry with her to the marriage. On that basis, the Tribunal found that, even if the harm which it accepted for the purpose of its decision were otherwise "persecution" within the Convention definition, it was not "for reasons of" the respondent's membership of a "particular social group". It was on that basis that the Tribunal confirmed the delegate's rejection of the respondent's application.
Taken in isolation such a finding might seem to be one of fact - assigning the harm that was accepted to have been proved to a cause based on a particular family's domestic disputes. If that were all, the decision would have to be affirmed by the courts, confined as they are in this respect to correcting errors of law on the part of administrative decision-makers. But when the significant factual material tendered by the respondent is taken into account, the material before the Tribunal arguably takes on a different character. It is then possible, indeed essential, to consider the family dispute concerning the respondent in the light of the material about the serious legal, social and practical disadvantages suffered by the respondent and women in her position which she presented to the Tribunal. The Tribunal might still conclude that the respondent did not fall within the Convention definition. But it could scarcely do so lawfully without considering, and making essential findings of fact about, the case that the respondent had propounded to bring herself within the Convention definition. In short, it was open to the Tribunal to reject the respondent's application. But in light of the substantial, apparently reliable and consistent material that she had produced concerning the situation in Pakistan affecting her and persons like herself, it was not open to the Tribunal to ignore the respondent's claim that her case was a paradigm instance of the discrimination of Pakistani law and official practice against women in her position, which amounted to persecution, justifying her fear about returning to Pakistan.
It follows that I agree with the primary judge and the majority in the Full Court of the Federal Court that the Tribunal committed an error of law in failing to make findings of fact on the respondent's allegation that she was unable to secure protection of the law and its agencies in Pakistan against the serious harm perpetrated against her and that she was a member of a "particular social group" of at least one of the kinds propounded before the Tribunal.
Until such factual findings were made it was impossible for the Tribunal to apply accurately to the facts, the Convention definition which the respondent had invoked. I agree with Callinan J[81] that it is sometimes possible to divide issues in a case and to deal only with a particular issue that amounts to a winning point that provides a completely legal answer to a claim. Such a case is illustrated by the recent decision of this Court in Minister for Immigration and Multicultural Affairs v Singh[82]. But where, as here, the Tribunal failed to address itself to the essential features of the case which the respondent had presented to establish persecution and to identify herself with a "particular social group" in Pakistan, this did not amount to by-passing unnecessary complications in the case. It represents an impermissible attempt to oversimplify the matter by ignoring essential factual determinations which, if decided in particular ways, would have brought the respondent within the Convention definition of "refugee" entitling her, by law, to the protection of Australia. This the Tribunal could not do. The Federal Court was correct to send the matter back to the Tribunal for reconsideration.

[83]

The essential concepts in the definition that arise for consideration in the context of this appeal are those of persecution, membership of a particular social group and whether the necessary causal relationships are established. Those causal relationships are indicated by the repeated references to "owing to" and the single reference to "for reasons of". Unless the character of the persecution alleged is properly identified, it is comparatively easy to misapply the causal criteria, as the Tribunal did in this case. When that occurs the Convention definition has not been applied to all of the facts propounded but only to some of them.
Some facts were clear, or accepted by the Tribunal for the purposes of the respondent's case. These were that she had a relevant "fear", that she was outside the country of her nationality and that she was unwilling to avail herself of the protection of that country. So the question for the Tribunal, in applying the Convention definition, was whether the remaining elements in the definition were made good by the respondent's case. The starting point for answering that question was to have a clear idea of the meaning of "persecuted".
To assign meaning to "persecuted" in this context, courts, including this Court, have had resort to dictionaries[83]. This is a natural enough course to adopt, common in elucidating the meaning of statutes and other written instruments expressed in words. I have myself followed the same course in this context[84]. According to such dictionary meanings "persecute" means "to pursue with harassing or oppressive treatment; harass persistently" and "to oppress with injury or punishment for adherence to principles"[85].
The application of these and similar definitions to the facts of the present case presents two questions. The first is whether it is permissible, and relevant, to have regard to the harmful conduct towards the respondent of non-state agents (such as her husband and his family) or whether only the conduct of the state and its agents is relevant in this context. The second is whether, if it is relevant to look at the conduct of non-state agents in this case, their conduct, as described by the material adduced before the Tribunal by the respondent, could qualify as "persecution". If the answer to each of these questions were in the negative, it would be pointless to remit this matter to the Tribunal because, whatever additional findings of fact it made, they would not rise to the level of persecution for the purposes of the Convention definition.
I am now inclined to see more clearly than before the dangers in the use of dictionary definitions of the word "persecuted" in the Convention definition. At least, I see such dangers unless there is an acceptance of the need for adjustments appropriate to the context. First, the word "persecuted" appears here in an international treaty which is not as susceptible to exposition by reference to Australian or even English standard dictionaries as is a word appearing in a local legal instrument. It is by use of dictionaries that concepts such as enmity and malignity have been imported to the notion of persecution which are neither mentioned in the text of the Convention, nor necessary to the context. Such a feature of the definition now seems to have been abandoned in Australia[86], it being recognised that some persecution is performed by people who think that they are doing their victims a favour. Dictionary definitions can thus incorrectly direct the mind of the decision-maker to the intention of the persecutor instead of to the effect on the persecuted. It is the latter that is important if the "fear" (twice referred to in the Convention definition) is to be understood and the complex motivations and causes of the flight and the claim of the applicant to protection are to be analysed correctly[87].
Secondly, this Court has repeatedly emphasised that, even in giving meaning to words used in a local legal instrument, it is essential to have regard to a context beyond the word itself. Normally, the sentence, not the word, is the medium by which an idea is constructed and communicated[88]. If this is the correct approach to elucidating meaning in a municipal legal document, it applies with even greater force to ascertaining the meaning of a document of considerable opacity, such as the Refugees Convention. In Applicant A[89], McHugh J said, correctly in my view:

[94]

The respondent presented a case that (she said) fell at least into category (d) and possibly (c) or even (b). The suggestion, derived in part from dictionary definitions of "persecution" taken in isolation from the context, that persecution requires affirmative harassment by state agents fired by enmity and malignity, must be firmly rejected. It is 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 uphold the basic human rights and dignity of the person concerned. As a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision-makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant[98]. Certainly, that assumption will be made where, as in the present case, the affront to the person concerned is objectively very serious and would appear to involve discrimination by state agents based on an inadmissible ground, namely the respondent's sex. In the context of the many reports of "stove deaths" in Pakistan and earlier threats to burn her alive, the incident in March 1997 in which the respondent was doused with petrol by her husband and his brother was objectively only capable of being treated as gravely criminal. It is impossible to believe that a similar act directed to the husband or another male victim would have been treated by police in Pakistan in such a dismissive fashion.
The response of the state agents in the present case could therefore only be fully understood and characterised after the Tribunal had proceeded to view it in the context of the materials which the respondent had placed before the Tribunal, relevant to the legal and other disadvantages faced by women in her situation in Pakistan. It follows that there was point in the Tribunal's proceeding to make factual findings on the materials provided by the respondent and to reach conclusions about whether the serious risk of harm together with the failure of state protection amounted to "persecution" as she alleged.
Without identifying the relevant acts claimed to be persecution it was impossible to consider their causative effects. Thus, if the serious harm were merely intra-family cruelty to the respondent that, of itself, would not attract the Convention definition so as to give rise to the relevant "fear" and to justify classification of the harm as "persecution" for a Convention ground. But if the serious harm were found to exist together with state inaction or inability to offer adequate protection, a completely different characterisation of the events would be open to the Tribunal. In such circumstances, the Tribunal could indeed conclude that the "fear" of the respondent of being "persecuted" was not simply her husband and his family's wrongs to her but that she was in a hopeless and intolerable situation where she had no-one to look to for effective protection, even of her life. Such a situation, if the other elements of the Convention definition were satisfied, would arguably fulfil the final step of the definition and explain why, in the circumstances, the respondent was unwilling to avail herself of the protection of her country of nationality.
At a risk of some oversimplification, with Lord Hoffmann in Shah[99] and Lord Clyde in Horvath v Secretary of State for the Home Department[100], I would express the foregoing analysis in the concise formula:

[98]

Thus, even if the Tribunal in the present matter were of the opinion that one ingredient in the Convention definition of persecution, namely the family threats and violence against the respondent by non-state actors, was not (as it concluded) committed for reasons of the respondent's actual or perceived membership of a particular social group, that would not be an end of the matter. If the respondent could show that her well-founded fear of being persecuted was "for reasons of" her being a member of a particular social group because state protection was unavailable to her, that would be enough to meet the Convention requirement.
This analysis demonstrates why the failure of the Tribunal in the present case to address, and make factual findings on, that question constituted an error that effectively meant that it had not fulfilled its legal responsibilities. It was not, with respect, a failure to address an unnecessary element in the respondent's claim for relief. Rather, it was a failure to address one of two grounds where the respondent was entitled to succeed if she made either of them good[105]. On its own, the failure of state protection is not capable of amounting to persecution. There must also be a threat or the actuality of serious harm, including from non-state agents. This is because "persecution" is constituted by the two elements described in the concise definition. But if either is "for reasons of" the claimant's membership of a particular social group, that is sufficient. The definition and the causal nexus will then be satisfied. To that extent, the claimant will have fulfilled the requirements of the Convention definition.
In the instant case, it may be accepted for the purposes of argument that the respondent's fear of serious harm at the hands of her husband and his family had no causal nexus to her membership of a particular social group - whether as a woman, a married woman in conflict with her husband, or a married woman without male support seen as having broken the customs and mores of Pakistani society or otherwise. The Tribunal so found. There seems no reason on legal grounds to question its finding in this respect. However, the causal relationship of the failure of state protection - by police and other agencies of the Pakistani state - is in a different category. There, arguably, on the materials placed by the respondent before the Tribunal, the reason for the failure of state protection is the fact that the respondent is a woman in conflict with her husband. At least, the Tribunal could, on the materials placed before it, so find. If it did, that would be sufficient. The causal nexus required by the Convention definition between the persecution propounded and the respondent's membership of the particular social group, as suggested by her, would be established.
The foregoing is a further reason why the Tribunal must complete the task imposed upon it by law. By making the relevant factual findings, it must address the alternative way that the respondent advanced her case. It was a case compatible with the language of the Convention and the manner in which it has been understood and applied in a number of jurisdictions, overseas[106] as well as in Australia[107].
In my respectful view, the approach urged in this appeal by the Minister departs from the foregoing substantial body of international practice. No basis for such departure was suggested except that it was said to be mandated by what the majority of this Court held in Applicant A[108]. I dissented in that case. I would accept that there are certain arguable discordances between the approach of the majority in that case and what this Court later held in Chen[109], another application for refugee status arising out of the one-child policy of the People's Republic of China. However, at least when Applicant A is read with Chen, I do not see any necessary inconsistency between the approach adopted by the House of Lords in Shah and the approach of this Court to the meaning of the Convention definition of "refugee". In Chen[110], I was party to the orders of the Court. I specifically invoked a number of passages from what had been said in the House of Lords in Shah[111].

[100]

These conclusions leave only the Minister's final suggestion that no relevant "particular social group" could exist with application to a person such as the respondent. There is force in the submission that, whilst attention is focussed on women in Pakistan in domestic conflict with their husbands, the causal nexus necessary to the Convention definition of "refugee" is missing because of the very great width of the "social group" postulated. But once the focus shifts to the failure of state protection, that suggested problem recedes in importance. The "group" is capable of being properly defined in a principled manner, specifically by reference to the ground upon which the state concerned has withdrawn the protection of the law and its agencies.
In some overseas jurisdictions it has been held[112], or postulated[113], that women in a particular country may, as such, constitute a "particular social group" for the purposes of the Convention definition. The possibility appears consistent with some of the documentation emerging from the agencies of the United Nations[114]. The Minister conceded in argument that the number of persons potentially involved in a "particular social group" would not of itself put an applicant otherwise within that group outside the Convention definition. This must be correct. After all, there were six million Jews who were incontestably persecuted in countries under Nazi rule. The mere fact that they were many would not have cast doubt on their individual claims to protection had only there been an international treaty such as the Refugees Convention in force in the 1930s and 1940s.
Nevertheless, the sheer number of persons potentially involved in a group such as "women in Pakistan" or even "married women in Pakistan" is such that some commentators have expressed doubt that this is the kind of "particular social group" that the Convention was referring to[115]. The Minister contested that such wide categories could in law ever amount to a "particular social group" within the Convention.
However that may be, the "particular social group" propounded by the respondent in the present case was capable of being expressed in terms that were considerably narrower and more specific. The materials presented by the respondent to the Tribunal suggest that there may be a particularly vulnerable group of married women in Pakistan, in dispute with their husbands and their husbands' families, unable to call on male support and subjected to, or threatened by, stove burnings at home as a means of getting rid of them yet incapable of securing effective protection from the police or agencies of the law. In the present case, because of the approach which it took, the Tribunal did not embark upon a consideration of whether there was a specific, and thus identifiable, "social group" of such a "particular" character and, if so, whether the respondent was a member of it.
Many countries (including, at least until quite recently, Australia) have afforded imperfect protection to women who suffer domestic violence. It does not follow that it is impossible to distinguish those countries that, however imperfectly, provide agencies of the law and non-discriminatory legal rules to address the problem from those countries that, for supposed religious, cultural, political or other reasons, consciously withdraw the protection of the law from a particularly vulnerable group within their society.
The Refugees Convention has nothing to say to persons who, being in Australia, are unwilling to avail themselves of the protection of their country of nationality where that country falls in the former category. However, depending upon the evidence in the case and the facts found by the administrative decision-maker, the Convention may well be available to persons from the latter category of country. That is what the respondent asserted was her case. As a matter of law she was entitled to have that assertion considered, the necessary facts found and her claim lawfully decided by the Tribunal. The orders of the Federal Court require that to happen. Those orders should be confirmed.

[101]

The appeal should be dismissed with costs.
CALLINAN J. The first respondent is a citizen of Pakistan and the other respondents are her children. In these reasons it is necessary to refer specifically to the first respondent only.
The statutory framework, the facts, and the course of proceedings below are relevantly fully stated by McHugh and Gummow JJ and need not be repeated, but some of the findings of the Refugee Review Tribunal should be. Before doing so, however, it is well to point out that the first respondent's case before the Tribunal was put in a number of alternative ways with respect to her membership of a particular social group: women; married women in Pakistan; married women in Pakistan without the protection of male relatives; married women in Pakistan separated from their husbands and without the protection of male relatives; married women in Pakistan suspected of adultery; or, women who have transgressed the mores of Pakistani society. For reasons which will appear, the Tribunal found it unnecessary to decide whether the first respondent was a member of any of the groups, and if she were, whether it was a particular social group within the meaning of Art 1A(2) of the Convention[116].
The findings that were made by the Tribunal and that were adverse to the first respondent were these.
The first respondent's husband was not motivated to harm her because she was a member of a particular social group.
Secondly, there was no nexus between the harm which the first respondent claimed to have suffered at the hands of her husband and the Convention ground of membership of a particular social group.
Thirdly, the Tribunal expressly found that the first respondent was not harmed because of her membership of any of the groups which she sought to define, and to which I have referred.
Furthermore, the Tribunal held that the first respondent was not persecuted because of her membership of a particular family.
Fifthly, it was held that the reason for the infliction of harm upon her by her husband was her husband's family's anger, or shame, that he should marry the first respondent for love, when the first respondent brought no dowry to the family and he was already engaged to be married to a relative.
A sixth finding was that the disharmony between the first respondent and her husband and his family was not influenced by her failure to carry out any role expected of women in Pakistani society: that the first respondent's problems related solely to the fact of her marriage against the wishes of his family, and to the fact that her husband's family disliked her personally.
The Tribunal also expressly held that some matters which the first respondent herself stressed, her inability to produce a son, the absence of a dowry, the first respondent's moral character, her non-compliance with her husband's family's wishes, and her status as her husband's property were the motivators for the abuse which she suffered.
An eighth finding of the Tribunal was that "women suspected of committing adultery" or "women suspected of kidnapping their children" were not a sufficiently cognisable group within Pakistani society to constitute a particular social group.
The next finding to which I need refer is that the first respondent's claim that she would be at risk of persecution while in custody in Pakistan was purely speculative and far fetched.
In the result, the Tribunal concluded that the first respondent's difficulties with her husband were of a private and personal nature, and were not related to the Convention ground of membership of a particular social group or to any other Convention ground.

[106]

Because I am of the same opinion as Hill J as to his conclusion and much of his reasoning, it is convenient to refer further to what his Honour said. I agree with his Honour's construction of the relevant Article and with his analysis of Chen Shi Hai v Minister for Immigration and Multicultural Affairs[118], that that case did involve positive action, that is to say, a deliberate abstention by or on behalf of the State, from the provision of necessities which were routinely provided to others.
In my opinion it was appropriate to decide this case on the basis that it was decided by the Tribunal; namely, that it had not been established that the first respondent feared persecution (however it is to be defined) for reason of membership of a particular social group. In arguing that there were several alternative groupings which might apply to the first respondent, she (and the person representing her before the Tribunal) cast her net as widely as she could. It is understandable that she would seek to do so. The Tribunal was, however, relieved of the necessity to classify her as a member of any one of those groups, assuming them to be particular social groups, as she was not in fact harmed, because, or for the reason that she was a woman in Pakistan, a married woman in Pakistan, a married woman in Pakistan without male relatives as protectors, a separated married woman in Pakistan without male relatives as protectors, or a woman who had, in some way, transgressed the accepted social customs of Pakistani society. And the finding, as to the true reason for the suffering of harm (that is the alleged persecution), related to each of the alternative ways in which she claimed to have been persecuted. In my opinion, it was therefore not correct for the primary judge, Branson J, to criticise the Tribunal for failing to make a finding as to which, or any particular, social group the first respondent belonged. The finding of the Tribunal simply amounted to a finding that the necessary relationship between a relevant reason and the requisite consequences did not exist.
Rather, in my opinion, and as both the Tribunal and Hill J also held, the situation in which the first respondent found herself was a situation which arose from the personal characteristics of her relationship with her husband and his family, albeit that her vulnerability as a woman in an abusive relationship may have contributed to the reluctance of the police to assist her[119].
Before discussing the reasoning of the majority (Lindgren J, Mathews J agreeing) in the Full Court of the Federal Court in this matter, there are some observations which I would make as to the meaning of the phrase "particular social group". In this case the appellant, for the purposes of the case, made a concession of a far reaching kind, the correctness of which I would at least question if the matter were otherwise a live issue. The concession was that all of the women of Pakistan, presumably of whatever age and in whatever circumstances, might be capable of constituting a particular social group within the meaning of the Article. To regard half of the humankind of a country, classified by their sex, as a particular social group strikes me as a somewhat unlikely proposition. A group must be part of something less than a whole. The bigger the group the more exceptions there will need to be made to it. And the bigger it is, the more general, and the fewer its defining characteristics will be. The use of the term "particular" reinforces the notion of a specific, readily definable body or group of people forming part of a larger whole. It is not possible, and it would be unwise to attempt, to catalogue all of the criteria for the identification and definition of a particular social group within the meaning of the relevant Article. But some features need, in my opinion, to be present. Membership of a particular social group cannot be confined to voluntary membership. One may be born into, or may become gathered up involuntarily into, a social group or groups. But there needs to be a clear linkage or common thread between the people said to constitute the particular social group. Again, as was pointed out by Hill J in the Full Court of the Federal Court here, conflicting international authority does not resolve the problem, although the reasons for judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs[120] very much help to do so. The fact of persecution of a number of people does not of itself mean that those people constitute a particular social group. The group must exist independently of, and not be defined by, the persecution, although the conduct of the persecutors may serve to identify or even create a particular social group. As McHugh J further pointed out in Applicant A[121], it must be possible, in order that the group may be regarded as a particular social group within the meaning of the Article, that it be identifiable as a social unit. There must be at least one characteristic, attribute, activity, belief, interest or goal that unites the members of it.
I would doubt whether there is any such characteristic, attribute, activity, belief, interest or goal here[122]. What there is here is what sadly occurs from time to time everywhere, as any experienced lawyer knows: violent family discord of which the unfortunate first respondent is the victim and in respect of which the police are reluctant interveners. Nor would I be confident that any of the other suggested categories could meet the criteria for membership of a social group in Pakistan. Some measure of precision must exist as to the criteria. I would doubt very much whether "all married women in that country" does so. And as to women married to abusive husbands, or women without the protection of male relatives, there will always be questions as to the efficacy and availability of local measures to prevent the abuse.
The first basis upon which the appeal succeeds is that there is no finding of fact by the Tribunal that the government of Pakistan was complicit in violence to women in abusive relationships. The evidence fell short of that: inactivity or inertia of itself does not constitute persecution. It is very difficult, indeed probably impossible, for an Australian court to assess according to our own standards or the standards of other countries the policing priorities of those countries. There needs to be, for persecution to have occurred, elements of deliberation and intention on the part of the State, which involve, at the very least, a decision not to intervene or act.
The majority in the Full Court (as with Branson J) were of the opinion that it was necessary for the Tribunal, in effect, as a starting point, to decide whether the first respondent was a member of a particular social group, and that had the Tribunal held that there was such a group, comprised, for example, of Pakistani women, or, alternatively, married Pakistani women, the Tribunal might well have concluded as Lord Steyn did in R v Immigration Appeal Tribunal; Ex parte Shah[123], that it was unrealistic to say that the persecution stemmed from her husband's hostility rather than membership of a social group. I cannot regard it as erroneous for the Tribunal, and indeed Hill J, to approach the case upon the basis that, however the social group might be defined, another cause was identified, and in my opinion correctly identified, as the reason for the abuse. What the Tribunal did was to identify the actual cause of the violence. Once it had done so, it was apparent that it was a different cause, or, that it occurred for a different reason, from any Convention reason. And that cause, coupled with reluctance, rather than deliberate abstention, by the police, still could not amount to a Convention reason. It was not erroneous for the Tribunal to approach the matter in the way that it did. Courts frequently proceed upon the basis that because one element of a cause of action, for example, causation, cannot be made out, whatever may have been the detriment to the plaintiff or the conduct of the alleged wrongdoer, the case cannot succeed because the necessary relationship between them has not been established[124]. The Tribunal conducted an exercise of exactly that kind in this case, and did not do so improperly. This is another basis upon which the appeal succeeds.
I would accordingly allow the appeal.

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