And ain't i a woman?: Fleeing domestic violence
Naima Khawar and her three children came to Australia from Pakistan on visitors' visas in June 1997. She applied for refugee status in September, because she had suffered 11 years of domestic violence at the hands of her husband and members of his family. Her husband beat her so badly that she was hospitalised, and once attempted to burn her alive by pouring petrol on her body.
Khawar's application was rejected by the immigration department in February 1998 and by the government-influenced Refugee Review Tribunal (RRT) in January 1999. She appealed this decision in the Federal Court in August 2000, and the court found in her favour, requiring the RRT to consider her case again.
Immigration minister Philip Ruddock appealed the Federal Court decision to the High Court. On April 11 this year, the High Court majority rejected the government's appeal, allowing the RRT review to go ahead.
According to the May 5 Dawn, an English-language daily in Pakistan, the Federal Court accepted Khawar's argument that Pakistani authorities failed to protect her from violence that amounted to persecution, making her a refugee.
The High Court rejected the Australian government's argument that Khawar does not belong to a particular social, religious or political group that is targeted for persecution, and that her victimisation stemmed from the personal circumstances of her marriage.
In explaining his decision, High Court Chief Justice Murray Gleeson deplored a system that condoned domestic violence: "She claims that 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."
According to a United Nations High Commission for Refugees report on the case, Gleeson said that even though women make up about half of Pakistan's population they could be a persecuted social group. "It is power not number that creates the conditions in which persecution may occur", Gleeson said.
Justice Ian Callinan was the only judge who disagreed, saying that Khawar's was "just a sad and not uncommon case of violent family discord in which police were reluctant interveners".
Fellow high court judge Michael Kirby quoted to the court from a 1994 department of foreign affairs cable which was critical of the Pakistani police, who had said "Oven burns lead sometimes to the death of wives, especially in rural districts of Pakistan".
"There were six million Jews who were incontestably persecuted in countries under Nazi rule", Kirby also said. "The mere fact that there were many would not have cast doubt on their individual claims for protection had only there been an international treaty such as the refugee convention in force in the 1930s and 1940s."
The Howard government's response to the decision was disappointing but predictable. Dawn reported that a spokesperson for the immigration minister commented on May 2: "If the courts have broadened out the definition [of a refugee] it's something the parliament might have to look at." In other words, if existing laws don't prevent people from seeking justice, the government will change them.
This would not be the government's first attempt to narrow Australia's interpretation of who is a refugee. Legislation passed with ALP support in September defines in detail what is legally considered to be "persecution" for the purposes of assessing refugees — removing much discretion form the courts.
The UN refugee convention does not explicitly include gender as a ground of persecution. It states that a person must have a well-founded fear of persecution due to their race, religion, nationality, membership of a particular social group or political opinion.
But the view of the United Nations High Commissioner for Refugees is that women may experience severe, inhuman treatment which amounts to persecution. In their 2002 book, Future Seekers — refugees and the law in Australia, Mary Crock and Ben Saul argue that "women who refuse to conform to strict codes of social behaviour (such as wearing restrictive clothing or being forced into arranged marriages) and victims of sexual violence may be considered refugees where a government does not provide adequate protection".
Forced abortion and sterilisation, female genital mutilation, the stoning of women accused of adultery, the condoning of domestic violence — all these things amount to persecution of women as a particular social group.
The Howard government's refugee policy is not only racist and xenophobic in its effect; it is also sexist in its refusal to acknowledge systematic persecution of women.
BY SARAH STEPHEN
[The author is a member of the Democratic Socialist Party.]
From Â鶹´«Ã½ Weekly, May 22, 2002.
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