http://www.news.com.au/common/story_page/0,4057,4114242%255E1702,00.html
Court backs abused woman
AAP
11apr02
WOMEN suffering domestic violence in their home countries may now have a
greater claim to refugee status in Australia after a High Court ruling.
The court today found in favour of a Pakistani woman abused by her
husband and family, who had sought asylum in Australia.
Four of five High Court judges rejected an appeal by Immigration
Minister Philip Ruddock who argued the ill-treatment of Mrs Naima Khawar
was not motivated by her membership of any particular social group.
Rather, the Government argued, it stemmed from purely personal
considerations related to her marriage and the fact she brought no dowry.
The High Court rejected that view. Chief Justice Murray Gleeson said it
would be open to the Refugee Review Tribunal to conclude that women in
Pakistan were a particular social group.
"The size of the group does not necessarily stand in the way of such a
conclusion," he said.
"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."
The Refugee Convention obliges Australia to protect those persecuted
because of race, religion, nationality, political opinion or membership
of a particular social group.
Mrs Khawar, a citizen of Pakistan, and her three children came to
Australia in June 1997.
She sought asylum, claiming to be a victim of domestic violence by her
husband and members of his family from 1986.
She said she needed hospital treatment for their beatings and they
threatened to throw acid on her and set her on fire.
Pakistani police refused to intervene. She said that refusal was part of
a systematic discrimination against women which was both tolerated and
sanctioned by the state.
Justice Michael Kirby said the large numbers of people in a particular
social group should not place an applicant outside the Convention
definition.
"After all, there were six million Jews who were incontestably
persecuted in countries under Nazi rule," he said.
"The mere face 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 Refugees Convention in force in the 1930s and 1940s."
Justice Ian Callinan disagreed, saying this was a sad and not uncommon
case of violent family discord in which police were reluctant interveners.
"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," he said.
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