NEW ZEALAND JURISPRUDENCE
A paper prepared for the Symposium
on Gender-Based Persecution
organised by the Office of
the United Nations High Commissioner
for Refugees, Geneva, 22 and
23 February 1996
Rodger PG Haines
New Zealand Refugee Status
PO Box 90251, Auckland Mail
Centre, Auckland, New Zealand
NEW ZEALAND REFUGEE DETERMINATION PROCESS
Refugee Status Branch - Gender Composition
Refugee Status Appeals Authority - Gender Composition
ISSUES IN THE APPEAL HEARING CONTEXT
Sterilisation and Abortion
One Child Family Cases
NEW ZEALAND JURISPRUDENCE
Rodger PG Haines(1)
 The New Zealand Government
acceded to the 1951 Convention relating to the Status of Refugees on 30
June 1960.(2) It acceded to the 1967 Protocol
relating to the Status of Refugees on 6 August 1973.(3)
In this paper, the Convention and Protocol
will be referred to as "the Convention".
 The geographical isolation
of New Zealand alone ensures that the number of spontaneous asylum applications
received annually is relatively modest on a world scale.(4)
New Zealand also has a visa regime which targets potential asylum-seekers.
The list of countries the citizens of which are visa exempt are in the
main countries which do not currently produce refugees.(5)
Conversely, persons required to obtain transit visas before transiting
through New Zealand are citizens of countries from which refugees flee
The Immigration Act 1987 also makes
provision for carrier sanctions. The person in charge of an aircraft is
liable to imprisonment for a term not exceeding three months or to a fine
not exceeding NZ$10,000. For the carrier, the penalty is the same except
that the fine is an amount not exceeding NZ$20,000.(7)
 The number of spontaneous
refugee applications lodged in New Zealand over recent years have been
 It would appear that no figures
have been kept documenting the number of women and children included in
these statistics. However, it is estimated that 85 per cent of asylum-seekers
(principal applicants, whose applications may include family members) are
men and 15 per cent women.(9)
 Notwithstanding the comparatively
small number of women arriving in New Zealand as spontaneous refugees,
there is a growing body of New Zealand jurisprudence addressing gender-related
issues in the refugee determination process. Before this jurisprudence
is examined, a brief explanation of the New Zealand procedures for determining
refugee status is necessary.
NEW ZEALAND REFUGEE DETERMINATION PROCESS
 Since January 1991, New
Zealand has operated a two-tier system for determining "spontaneous" refugee
applications. At first instance, applications are processed by officers
of the Refugee Status Branch of the New Zealand Immigration Service. The
Refugee Status Branch conducts an oral interview with the applicant who
is entitled to be accompanied by a lawyer or other representative.
Where the application for refugee
status is declined, there is a right of appeal to the Refugee Status Appeals
Authority, an independent body presently staffed by practising or recently
retired lawyers drawn entirely from outside Government. A representative
of the United Nations High Commissioner for Refugees is ex officio
a member of the Authority. Appeals proceed by way of a hearing de novo
and all issues of law, fact and credibility are at large. The appellant
attends in person to give his or her evidence. All decisions of the Authority
are delivered in writing. The Authority considers only the question whether
the appellant is a refugee. It has no jurisdiction to consider immigration
issues and, in particular, whether or not an individual should be granted
a permit under the Immigration Act 1987.(10)
The refugee status determination procedure
is non-statutory and has been set up under the prerogative powers of the
Executive.(11) The Terms of Reference under
which the Authority operates are based on the principle that an adversarial
procedure is inappropriate for the refugee determination process, and although
the New Zealand legal system is essentially based on the adversarial Common
Law model, hearings before the Authority are investigative or inquisitorial
in nature. That is, while the burden of proof rests on the appellant, the
enquiry into the facts is shared between the appellant and the Authority.(12)
There is no other "party" at the hearing, and the New Zealand Immigration
Service is only heard in rare cases.(13)
 Following from this brief
overview, it is now intended to refer to certain aspects of the process
which may particularly affect the determination of refugee claims by women.
Refugee Status Branch - Gender Composition
 The Refugee Status Branch
is a division of the New Zealand Immigration Service. Under the Terms of
Reference which came into force on 30 August 1993, the Refugee Status Branch
is charged with the responsibility of making a first instance determination
of refugee status.
 Of the seventeen immigration
officers currently employed by the Refugee Status Branch, eleven (or 65%)
 The Refugee Status ranch
has no written guidelines pertaining to the asylum claims by women. However,
each officer has available the UNHCR Guidelines on the Protection of
Refugee Women (July 1991), the decisions of the Refugee Status Appeals
Authority, and subsidiary materials.
Refugee Status Appeals Authority - Gender Composition
 When the Refugee Status
Appeals Authority (the RSAA) was first set up in early 1991, the three
original appointees were male. Since 1993, however, 50 per cent of new
appointees have been women. At the present time, of the fifteen members
of the RSAA, six are women, or 40 per cent.
As earlier mentioned, the RSAA's Terms
of Reference provide that a representative of the UNHCR is ex officio
a member of the Authority. At the present time, two of the four protection
officers stationed in the UNHCR Regional Office in Canberra and who travel
to New Zealand to participate in the appeal hearings are women. This has
the result of raising the number of women on the Authority to almost 50
per cent. It is common for appeals to be heard by a panel of two comprising
one female and one male member. It is not uncommon for appeals to be heard
by an all women panel.
 The support staff (or secretariat)
of the Authority, with whom appellants have the most contact, are, with
one exception, all women.
 Airports and seaports
in New Zealand are primarily staffed by Customs officers. It is with them
that spontaneous asylum-seekers usually have initial contact as, by virtue
of the Immigration Act 1987, section 2, Customs officers are "Immigration
officers" for the purpose of processing passengers arriving from overseas.
No particular training in dealing with female refugee claimants is provided
to Customs officers who perform the function of an Immigration officer
at ports of arrival. The reason is that the Customs Department does not
regard refugee claimants as a Customs matter and the only procedural instructions
are to refer such people to the duty Immigration officer stationed at the
relevant international airport. At other ports of entry where Immigration
officers are not immediately available, the Customs Department contacts
the nearest Immigration Service office for instructions.
The Customs Department does not have
a policy of ensuring that a female refugee claimant is dealt with by a
female Customs officer until referral to the duty Immigration officer.
A claimant in this situation would be dealt with by a female Customs officer
only if the lane that the asylum-seekers happened to pick was being processed
by a female Customs officer at the time, or the supervisor was a female.
Immigration officers at the border
apply the same stringent procedures to all interviews regardless of race,
creed or sex. However, account is taken of the particular requirements
of the specific case. It is also standard procedure that where the person
being interviewed is a female and the interviewing officer is also female,
the officer will seek support by the attendance of a male officer, or if
the interviewing officer is a male, by the attendance of a female officer.
 The training of Immigration
officers employed in the Refugee Status Branch is largely carried out by
UNHCR protection officers from Canberra and, as one would expect, gender-based
persecution is specifically addressed, as are the specific needs of female
 The training of members
of the RSAA is largely carried out by the author of this paper, who is
also a lecturer in Immigration and Refugee Law, Faculty of Law, Auckland
University, New Zealand.(14) In the training
programme, emphasis is placed on giving special recognition to the way
in which women can be persecuted, and the reasons for such persecution;
in other words, the issues of how and why women
 Lawyers and advocates appearing
for asylum-seekers are able to enrol in the Immigration and Refugee Law
paper offered by the Faculty of Law, Auckland University. The special needs
of female refugee claimants and the specific topic of gender-based persecution
is addressed in the course. In addition, from time to time, continuing
legal education programmes are organised by the Auckland District Law Society
which address immigration and refugee issues. At these seminars, the asylum
claims of women have been specifically addressed.(15)
ISSUES IN THE APPEAL HEARING CONTEXT
 However, little on asylum
claims by women has been published in New Zealand, with the notable exception
of the unpublished dissertation by Susannah Downing, Caught in his Castle:
Getting Women Across the Moat - Domestic Violence and Refugee Status
 The RSAA endeavours, wherever
possible, to ensure that all asylum claims by women are heard by a panel
of Authority members comprising at least one woman. In addition, where
the claim involves allegations of sexual violence or abuse, a female interpreter
is used at the hearing unless there is no other alternative, eg, because
there are no qualified female interpreters in the claimant's language.
Currently, approximately 52% of the interpreters employed by the RSAA are
female. At the Refugee Status Branch, the proportion is approximately the
 Lawyers and consultants
representing women asylum-seekers are encouraged to alert the Authority
in advance of the hearing to any other specific factors (eg, sexual violence
or culture) which particularly indicate the need for female members of
the Authority to hear the case, or for a female interpreter to be employed.
 Where an asylum claim
is presented by a family, the practice of the Authority is to interview
the husband and wife at the same hearing, but in the absence of each other
in case one partner is reluctant (for any reason) to disclose information
in the presence of the other. Similarly, the Authority is conscious of
the need to interview separately the children, if of an appropriate age.
The Authority is aware that, in some
cultures, the man is regarded as the head of the household, and therefore
the "medium" between the family and the outside world. It is usually his
case that is advanced in support of the claim to refugee status, even though,
on an objective assessment, his may not be the strongest claim. Very often,
the wife, if in New Zealand, is left at home and does not attend the hearing.
Similarly, while the wife may not have a claim of her own, she may be in
possession of important evidence, or be able to confirm the husband's account
in a material respect. The Authority accordingly makes a point of enquiring,
at the commencement of the hearing, as to the whereabouts of the wife and
children, and if it is apparent that they are in New Zealand and that their
presence is or could be important to the outcome of the case, ascertains
the reason for their non-appearance. Sometimes the hearing is adjourned
part-heard for the wife or child to attend, and sometimes the claimant
will arrange for his wife to come to the hearing immediately. In one particular
case, a potential adverse credibility assessment of the male claimant was
thus avoided: Refugee Appeal No. 300/92 Re MSM (1 March 1994) 3:
"The Authority believes the appellant.
Our principal reason is that the appellant's wife gave evidence which confirmed
to a very large degree what the appellant himself told us. In particular,
she gave evidence that she had attended these underground meetings from
time to time, though not as often as her husband. She was able to give
clear and specific details of the time, place and circumstances of the
meetings, and the Authority unhesitatingly accepts her as a witness of
the truth. By way of contrast, the appellant presents as a rather vague,
if not spiritual, individual who is not at home in describing events in
terms of time, place, circumstance and related specific details. His evidence
was more "impressionistic". These are not, of course, reasons for disbelieving
him, but the Authority was assisted in accepting him as a credible witness
by the evidence given by his wife. In this there is some irony. When the
hearing began, the appellant's wife was not present and the Authority was
told that it was not intended that she be called as a witness. When the
Authority asked for the appellant's passport, we were told that he had
inadvertently left it at home. Following a telephone call from the appellant,
his wife came in to deliver the passport. The Authority took advantage
of her presence to suggest that she give evidence and, through his counsel,
the appellant readily agreed to this proposal. It is largely through these
fortuitous events that the Authority has been able to arrive at a different
conclusion to that reached by the Refugee Status Section. The appellant's
wife did not give evidence at that hearing."
 In another case, the wife
was simply not heard at first instance by the Refugee Status Branch. Yet
the case raised important issues of gender-based persecution. See Refugee
Appeal No. 1039/93 Re HBS and LBY (13 February 1995), in which the
appellants (husband and wife), both citizens of Malaysia, had come to New
Zealand in order to marry. Subsequent to their marriage, various attempts
were made to obtain a New Zealand residence permit, but without success.
Finally, a refugee application was lodged. The basis of the application
was that the husband was born to a Malay man of the Moslem faith and a
Malay Chinese woman of the Buddhist faith who had converted to Islam in
order to marry. The claimant was, under Malaysian law, a Moslem, but could
not accept this fact, regarding himself as "Chinese", as his parents had
divorced when he was very young. Thereafter he had been brought up as a
Malay Chinese. He later identified with Christianity, though there was
no formal conversion. The wife came from a Malay Chinese family and was
a Buddhist. Their case, as set out at page 7 of the decision, was:
"Approximately four years prior to
their arrival in New Zealand, Mr S and Mrs L formed a relationship. They
wished to marry but feared for the consequences both to them and to any
children of the marriage. It is their belief that as Mr S is the son of
a Moslem Malay, he remains a Moslem under Malaysian law and is therefore
governed by the Shariah Law which forbids marriage between a Moslem man
and a non-Moslem woman unless the woman first converts to Islam. The relationship
between the couple and every aspect of their daily personal existence would
thenceforth by governed by Islam law. For his part, Mr S does not consider
himself to be a Moslem and does not wish to have his personal and family
life governed by the Shariah. For her part, Mrs L is adamantly opposed
to converting to Islam and living the rest of her life under what she sees
as the intolerable oppression imposed on women by that faith. They gave
evidence that it would not be possible for Mr S to renounce Islam as the
procedures prescribed in Malaysia are extremely difficult and the would-be
apostate encounters hostility and bureaucratic obstruction. Mr S stated
that one of his sisters has been trying unsuccessfully for the past ten
years to renounce Islam and thereby change her name officially from Malay
to Chinese. They say that it would not be possible for them to bypass these
difficulties by living in a de facto relationship as they will still
encounter difficulties in all their dealings with government departments
and government-run institutions, such as schools and in addition, they
will be at the mercy of groups which enforce the religious law which prohibits
khalwat, or "close proximity" between unmarried couples."
On the face of this claim, it might have
been expected that at the first instance hearing by the Refugee Status
Branch, both claimants would have been interviewed. Surprisingly, only
the male applicant attended and even more surprisingly, the interviewing
officer did not ask to see the wife. Even the decline decision addressed
only the husband's case. No real consideration was ever given to the wife's
application. In its decision, the RSAA commented adversely on this oversight
(page 12). In the event, following an appeal hearing at which both husband
and wife gave evidence, the appeal was allowed for reasons which will be
addressed in greater detail later in this paper.
All refugee claims involve difficult credibility assessments and special
effort must be made to explore factors which might explain why important
information is withheld until the last moment, or why there are sometimes
dramatic changes to the claimant's account. These considerations apply
just as much in asylum claims by women. The following cases are taken by
way of illustration.
 In Refugee Appeal No.
940/92 Re LHM and LTT (2 July 1993), the Authority heard an appeal
by two Vietnamese sisters aged 56 and 43 respectively. The account by the
appellant LTT at the appeal hearing included a claim that she had been
suffered an attempted rape by a government official. This claim had not
been made in her initial statement or in her evidence at the first instance
Refugee Status Branch hearing. However, the Authority accepted (at page
4) the explanation given, namely, that:
"It was explained by the brother in
evidence that culturally this was a very sensitive matter about which a
Vietnamese woman would be most reluctant to speak and it was obvious that
the first appellant only described the incident with great distress.
Similarly, in Refugee Appeal No. 1867/93
re SCDC (9 June 1994) 8, a claimant who had suffered rape and harassment
in Peru was accepted as a credible witness, notwithstanding inconsistencies
and embellishments, the RSAA taking to account the trauma she had suffered.
In spite of the variations in their
case, we found the appellants to be credible witnesses. They impressed
as truthful, naive and somewhat fragile ladies, emotionally."
In Refugee Appeal No. 445/92 Re
FB (4 November 1992) 5, an Iranian woman, who at the appeal hearing
related for the first time her involvement in a women's rights movement
in Iran, was accepted as a credible witness, the Authority stating that
it was obvious she was under considerable stress.
 However, women do not
have a licence to "strengthen" their claims by making false claims. In
this respect, their cases are no different to those of men. Difficult though
the credibility assessment might be, adverse findings must be made if this
is the appropriate conclusion on the facts.
Thus, in Refugee Appeal No. 788/92
Re YWJ (12 April 1994) 5, the RSAA did not believe a woman from the
People's Republic of China who belatedly claimed that she had been physically
ill-treated and indecently assaulted during her detention by the authorities.
She claimed that she had not mentioned these facts because, as a woman,
she did not find it "convenient" for her to do so.
 It may seem obvious that
the special sensitivity required in gender-based claims should be as much
present at the beginning of the refugee status determination process as
at the end. Regrettably, this has not always been the case in New Zealand.
As the facts of the following case show, what a claimant says upon arrival
in New Zealand at the airport has the potential of influencing the final
outcome of the claim.
 In Refugee Appeal No.
915/92 Re SY (29 August 1994), the claimant was a 23 year old woman
from Iran. Her case at the appeal hearing included a claim that on two
occasions she had been detained by the Iranian authorities for violation
of the so-called dress code, sexually molested and beaten. These incidents
had had a profound effect on her and she had become frightened and withdrawn.
Within months of the second incident, the two Pasdars who had molested
her called at her home and accused her of membership of the People's Mojahedin
Organisation of Iran (PMOI). She was not arrested, but her family decided
she had to leave Iran.
Her arrival in New Zealand did not
occur in happy circumstances. On stating at the airport that she wished
to apply for refugee status, she was taken off by two female officers who
proceeded to strip search her. This was a most embarrassing experience
for her, the more so because she was having her period at the time. She
was then interviewed by an immigration official concerning her refugee
claim and her answers were recorded. For some reason, she was not shown
a Farsi translation of the refugee definition until the interview was well-advanced.
This airport interview was subsequently to form the basis of the decline
of her refugee application at first instance as the account she later gave
at the formal Refugee Status Branch interview contained much more information
than she had given at the airport. The changes to her account were claimed
to demonstrate her lack of credibility. In allowing her appeal, the RSAA
commented adversely on the way in which the case had been processed. See
page 7 of the decision:
"This sort of reasoning process is,
in our view, completely inadequate given the responsibilities of an interviewer
and the grave consequences which were involved. In this case, the relevant
authorities were dealing with a young unaccompanied Iranian woman who had
been sexually molested on two recent occasions whilst being detained by
Pasdars. On arrival in a strange country at the end of a ten hour flight
(having been accompanied on and off the aircraft by 'officials') she is
then stripped and searched. At an earlier opportunity, she gives an account
of her being beaten by Pasdars in September 1991. To reject her story in
totality as a fabrication because she omitted to mention at the airport
her uncle's execution in 1981 and the earlier detention in July 1991, fails
to address the central issue. The central issue in this particular case
is whether the treatment undergone by the appellant in 1991 gave rise to
a well-founded fear of persecution. To seize on various peripheral issues
and inconsistencies and to use those as a ground for rejecting a claim
in its entirety as a fabrication is not, in our view, an appropriate modus
operandi. Furthermore, having closely questioned and observed the appellant
during the course of the hearing before us, we were satisfied that her
story was truthful. We find it hard to believe that an interviewing officer
could have made such a sweeping adverse finding of credibility against
her, particularly for the reasons stated."
 It is now intended to address
the two primary areas in which New Zealand refugee jurisprudence has developed
in relation to gender-based claims: Persecution and the Convention grounds
(race, religion, nationality, membership of a particular social group,
 So that New Zealand gender-based
persecution cases can be understood in context, several basic principles
of New Zealand refugee jurisprudence must be explained, as they inherently
recognise and address gender issues.
 First, New Zealand refugee
jurisprudence accepts that persecution may be defined as the sustained
or systemic violation of basic human rights demonstrative of a failure
of state protection: Refugee Appeal No. 1039/93 Re HBS and LBY (13
February 1995) 19-20 adopting Canada (Attorney-General) v Ward 
2 SCR 689, 733 (SC:Can) which in turn drew on Professor James C Hathaway,
The Law of Refugee Status (1991) 108.
More particularly, the RSAA has explicitly
approved the statement in Ward at 733 that:
"Underlying the Convention is the
international community's commitment to the assurance of basic human rights
While discrimination is not of itself
sufficient to establish a case for refugee status, the RSAA in Refugee
Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 26 recognised
that discrimination can affect gender-based groups to different degrees
"The Authority should ... consciously
strive both to recognise and to give proper weight to the impact of discriminatory
measures on women."
As the facts of that case show, various
acts of discrimination, in their cumulative effect, can deny human dignity
in key ways and should properly be recognised as persecution for the purposes
of the Convention.
 Second, New Zealand refugee
jurisprudence also accepts that there are four situations in which there
can be said to be a failure of state protection:
(1) Persecution committed by
the state concerned.
(2) Persecution condoned by
the state concerned.
(3) Persecution tolerated by
the state concerned.
(4) Persecution not condoned
or not tolerated by the state concerned, but nevertheless present because
the state either refuses or is unable to offer adequate protection.
See Refugee Appeal No. 11/91 Re
S (5 September 1991) 14-19. In so holding, the Authority concurred
with the opinion expressed in the UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status para 65 and followed and applied a line
of Canadian decisions including Rajudeen v Minister of Employment and
Immigration (1984) 55 NR 129 (FC:CA) and Surujpal v Minister of
Employment and Immigration (1985) 60 NR 73 (FC:CA). Since then, both
of these cases, as well as para 65 of the Handbook have been specifically
approved by the Supreme Court of Canada in Canada (Attorney-General)
v Ward  2 SCR 689, 709-721 (SC:Can).
We have found no justification for
the interpretation adopted by some Western European countries, especially
Germany, Sweden and France, which restricts the application of the concept
of agents of persecution to the extent that refugee status is only granted
to victims of persecution by state authorities or by other actors encouraged
or tolerated by the state. On this view, inability of the state to afford
adequate protection does not lead to refugee status: UNHCR, An Overview
of Protection Issues in Western Europe: Legislative Trends and Positions
Taken by UNHCR European Series Vol 1, No. 3, September 1995, 27-30.
We find ourselves in agreement with the UNHCR position in this regard as
stated at op cit 28-30 which is largely in accord with the Ward
It can therefore be said that New
Zealand jurisprudence explicitly recognises that non-state or "private"
violence can constitute grounds for refugee status.(18)
 Third, the standard applied
in New Zealand for assessing whether there is a sustained or systemic violation
of basic human rights is an international standard, namely, the so-called
International Bill of Rights comprising the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights 1966 (the
ICCPR), and the International Covenant on Economic, Social and Cultural
Rights 1966. The RSAA's jurisprudence has been informed by Professor Hathaway's
theory of persecution based on these instruments and the hierarchy of rights
found in them(19) and by Professor Guy
S Goodwin-Gill's observation that in deciding whether acts amount to persecution,
it is very much a question of degree and proportion.(20)
 Fourth, as a consequence
of applying an international standard, we have rejected the argument, based
on cultural relativity, that New Zealand as a "Western" country cannot
assess human rights in the claimant's country of origin.(21)
 These four principles
can have a profound effect on gender-based claims as the following cases
 While many refugee claims
are based to a degree on discrimination, the RSAA has recognised that discriminatory
measures can impact particularly severely on women. Thus in the case involving
the husband and wife from Malaysia (Refugee Appeal No. 1039/93 Re HBS
and LBY (13 February 1995)), the consequences of the wife having to
convert to Islam were examined from a woman's point of view. Quite apart
from the involuntary surrender of her own religion and the irrevocable
consequences which would follow on both the religious and political planes
(p 22), the impact of the surrender of her individual existence was also
weighed. It was not just a change of religious belief, of name and dress,
it was an abandonment of her identity and personal integrity: she quite
simply did not want to become a Moslem woman or to accept the discrimination
and subordinate status that such a step implied to her. Her choice, if
there was one, was to convert or face a future in which her marriage was
not recognised under Malaysian law, to have her children regarded as illegitimate,
to have no rights over matrimonial property, and no right to support in
the event of the relationship failing, no inheritance rights and being
shunned by the Moslem community in general. On the facts, the RSAA held
that the anticipated discrimination, in its cumulative effect, amounted
to persecution by denying the human dignity of Mrs L in key ways under
ICCPR Articles 17, 18 and 23.
 In Refugee Appeal No.
2039/93 Re MN (12 February 1996), the Authority returned to the issue
of gender discrimination in the context of a refugee claim by an Arab Iranian
woman. The claim was advanced (inter alia) on the basis of her belief that
women were entitled to recognition as full, equal human beings who deserve
the same rights and freedoms as men, that women have the right to function
as autonomous and independent individuals. These beliefs led to her being
fundamentally at odds, not only with the power structure at state level,
but also with the patriarchal tribal social values of her extended Arab
family at family level. Both the state and her family, she contended, employed
Islamic ideology to control women.
While this case will be referred to
later in the context of the Convention grounds of political opinion and
particular social group, it is mentioned here by reason of the human rights
framework employed in the decision for the purpose of determining whether
the discrimination and punishment feared by her was sufficient to amount
to persecution. In holding that it was, the RSAA applied the hierarchy
of rights, concentrating initially on first level rights including ICCPR
Article 6 (right to life), ICCPR Article 7 (cruel, inhuman or degrading
treatment or punishment), and ICCPR Article 18 (freedom of thought and
conscience). Second level rights included ICCPR Article 19 (freedom of
opinion), and ICCPR Article 17 (privacy).
The decision also discusses the non-discrimination
provisions of the ICCPR, namely, Article 2(1) and (3)(a), 3 and 26. It
notes the accessory character of Article 2 which means that a violation
of Article 2 can occur only in conjunction with the concrete exercise (but
not necessarily violation) of one of the substantive rights ensured by
the ICCPR: Manfred Nowak, UN Covenant on Civil and Political Rights:
ICCPR Commentary (1993) 28 para 3; 34 para 15. Under Article 3, the
obligation of States Parties to ensure the equal right of men and women
to enjoy civil and political rights refers only to the rights in the ICCPR.
Article 3's scope of application is therefore more narrow than that of
Article 26, which ensures a general claim to equal protection of the law
against discrimination. Discrimination of women in the field of labour
or social law thus does not violate Article 3, but rather only Article
26: Nowak op cit 68 para 5. The Authority therefore concluded that
the primary non-discrimination provision of the ICCPR is that contained
in ICCPR Article 26, and it was this Article which received the greatest
weight in assessing the discrimination limb of the case.
While the Convention on the Elimination
of all Forms of Discrimination Against Women (CEDAW) is often cited in
the context of refugee gender issues,(22)
the RSAA has not to date found the Convention of any real assistance in
applying the hierarchy of rights. In Refugee Appeal No. 2039/93 Re MN
(12 February 1996) it observed:
"While it is appropriate to acknowledge
the importance of the Convention on the Elimination of all Forms of Discrimination
Against Women (CEDAW), we do not believe that its provisions add very much
to the appellant's case. First, the ICCPR itself stresses gender equality
in various places: in the general, accessory prohibition of discrimination
in Article 2(1) in the specific prohibitions of discrimination in Articles
4(1), 24(1) and 25, in the specific requirement of equality between spouses
in Article 23(4), and in the general right of equality and prohibition
of discrimination in Article 26.
 For these reasons, we have
to date found the ICCPR, with its compendious anti-discrimination provisions,
more directly relevant to gender-related claims than CEDAW. But this does
not detract from the undoubted significance of CEDAW as an international
Second, unlike the ICCPR, CEDAW does
not contain rights which are in immediately binding form, nor are any rights
made non-derogable. Indeed, CEDAW is entirely silent on the issue of derogation.
Additionally, CEDAW, in many of its provisions, implies gradual or programmatic
implementation of its terms and the Committee on the Elimination of Discrimination
Against Women has relatively little power.
Third, there is the problem of reservations
(some based on the shari'a law) which, on one view, seem to have
turned CEDAW into a weak instrument: Liesbeth Lijnzaad, Reservations
to UN-related Human Rights Treaties: Ratify and Ruin? (1995) 4-5, 304.
In identifying the "object and purpose" of CEDAW for the purpose of assessing
the validity of various reservations against Article 19 of the Vienna Convention
on the Law of Treaties, Ms Lijnzaad concludes at op cit 304 that
only a very limited number of provisions of CEDAW can be termed core obligations
identifying the object and purpose of CEDAW:
"On the whole, there would seem to
be a communis opinio on the core value of articles 2, 9, 11, 15 and 16.
While article 2 presents the goals of the Convention in a nutshell, the
other articles deal with discrimination in the fields of nationality, labour,
equality before the law and equality in family matters. It may be suggested
that these are the fields in which discrimination is most detrimental to
the achievement of women's equal rights."
In the circumstances of the present case,
we take the view that the ICCPR adds greater strength to the appellant's
claim than CEDAW."
 Exacerbating the sometimes
claimed opposition between the public/political and private/non-political
(to which women's experiences are said to belong) is the sometimes encountered
claim that religious or cultural practices both explain and justify the
discrimination (if not persecution) of women. The cultural relativity argument
has the potential of confusing decision-makers in countries of asylum as
to the appropriate standard by which human rights infringements in the
country of origin are to be judged.
 In New Zealand, cultural
relativism has most commonly been encountered in the context of refugee
applications by women from Iran, but it is an argument which may also surface
in the context of cases involving female genital mutilation and domestic
 There would appear to
be a surprising dearth of international refugee jurisprudence addressing
the cultural relativity issue. In the New Zealand context, there is now
Refugee Appeal No. 2039/93 Re MN (12 February 1996) which holds
that the universality of the International Bill of Rights will not permit
social, cultural or religious practices in a country of origin from escaping
assessment according to international human rights standards. As Professor
Rosalyn Higgins has said, human rights are rights held simply by virtue
of being a human person. They are part and parcel of the integrity and
dignity of the human being. They are thus rights that cannot be given or
withdrawn at will by any domestic legal system: Problems and Process:
International Law and How We Use It (1995) 96.
 Against this background,
reference will now be made to some of the principal persecution issues
encountered in New Zealand in the context of refugee applications by women.
 New Zealand has received
a significant number of refugee applications from Iranian women. It is
a common feature of these claims that they are inarticulate in the sense
that the claimant (or more accurately, her lawyer or immigration consultant)
will focus on the superficial, for example, her objection to the so-called
This is unfortunately compounded too
often by a failure by decision-makers to examine the facts in terms of
a human rights framework and this, in turn, often leads to a failure to
appreciate the true significance of a particular woman's objection to compliance
with a so-called Islamist requirement as to dress.
 Put simply, beyond an
objection to the wearing of a chador may perhaps lie a deeply held by previously
unarticulated belief by the woman as to her own worth, her claim to a right
to an individual existence as a human being, her claim for respect of her
right to freedom of thought and conscience, her right to an individual
spiritual and moral existence. In short, the freedom to live and act in
harmony with her conscience. These claims are of no less significance than
a claim by a male asylum-seeker to the right to respect for his conventionally
defined political opinions.
 These perceptions are
ultimately a pre-requisite to the making of an assessment whether the denial
of the women's rights amounts to persecutorial conduct.
In this regard, the failure of the
refugee claim in Fatin v INS 12 F.3d 1233 (3rd Cir. 1993)
is a cautionary tale when contrasted with the successful outcome in Fisher
v INS 37 F.3d 1371 (9th Cir. 1994). It is ironical that
it was in Fatin (at 1242) that we find the suggestion (later approved
in Fisher at 1380-1381) that:
"[The] concept of persecution is broad
enough to include governmental measures that compel an individual to engage
in conduct that is not physically painful or harmful but is abhorrent to
that individuals' deepest beliefs."
Thus in Fisher the 9th
Circuit was of the view that when a person with [in that case] religious
views different from those espoused by a religious regime is required to
conform to, or is punished for failing to comply with, laws that are fundamentally
abhorrent to that person's deeply held religious convictions, the resulting
anguish should be considered in determining whether the authorities have
engaged in conduct that is persecution.
 Following on from Refugee
Appeal No. 2039/93 Re MN (12 February 1996) 37, 38 & 51, it is
now accepted in New Zealand that in assessing whether a female claimant
faces persecution, proper weight must be given to the significance of her
being required to comply with codes and requirements fundamentally at odds
with her conscience and beliefs or deeply held convictions, or to engage
in conduct that is abhorrent to her own beliefs, even though those beliefs
are not necessarily religious beliefs.
 It has long been accepted
in New Zealand refugee jurisprudence that sexual violence, or the threat
of sexual violence, can constitute persecution, irrespective whether that
violence is at the hands of a state agent or a non-state agent.
 Thus, in Refugee Appeal
No. 80/91 Re NS (20 February 1992) 5-6, it was accepted that Moslem
women from Kashmir who feared sexual abuse at the hands of fellow Moslems
and also at the hands of the Indian army, was in fear of persecution.
Similarly, in Refugee Appeal No.
559/92 Re MG (12 April 1994) 3, refugee status was granted to a young
single Croat woman who feared rape by Serbs.
In Refugee Appeal No. 1867/93 Re
SCDC (9 June 1994) 8, it was held that a Peruvian woman who had been
raped by a terrorist group after refusing to join it, had been persecuted.
Refugee status was granted as it was found that the woman held a well-founded
fear of further sexual violence and harassment at the hands of the group
and that the Peruvian government was unable to afford effective protection.
Likewise in Refugee Appeal No.
2078/93 Re DC (4 April 1995) 8, a woman from the Chittagong Hill Tracts
region of Bangladesh who had been raped by officers of the Bangladesh Army,
was found to have been persecuted.
In Refugee Appeal No. 755/92 Re
BK and MK (19 August 1994) 4-5, a Sikh woman was detained by Punjabi
police who were in search of her husband. For the next two days, she was
beaten, assaulted, propositioned sexually by a police inspector, stripped
naked, placed on a block of ice, and beaten in humiliating circumstances.
On these facts, it was found that she had been persecuted.
 In Refugee Appeal No.
1857/93 Re MPN and Refugee Appeal No. 1858/93 Re KHN (31 July 1995)
15, two Burmese sisters of Shan ethnicity who feared persecution, including
sexual violence at the hands of the Burmese army, were granted refugee
In Refugee Appeal No. 836/9 Re
DSJL (14 June 1994) 4, where the claimant was a Tamil nun from Sri
Lanka, it was accepted that her distinctive dress, along with the suspicions
on the part of Sinhalese about her as a nun, placed her differentially
at risk from other young Tamils in the south of Sri Lanka.
There is also the case already referred
to, namely, Refugee Appeal No. 915/92 Re SY (29 August 1994) in
which a young Iranian woman had been twice detained for breach of the dress
code, and on each occasion sexually molested by the grabbing of her breasts
and genital area. These detentions and assaults were regarded by the RSAA
as significant factors in assessing the risk of persecution were the woman
to return to Iran.
Sterilisation and Abortion
 In Refugee Appeal No.
3/91 Re ZWD (20 October 1992) 44, 51, it was accepted that compulsory
abortion and compulsory sterilisation may in appropriate
circumstances, amount to persecution. But the RSAA emphasised that an unqualified
statement could not be made that enforced abortion or sterilisation per
se constituted an unjustifiable infringement of a human right as there
might be, in any particular case, the potential for competing considerations,
including public interest factors. On the facts of the case (involving
a refugee claim by a male citizen of the People's Republic of China who
did not wish to be sterilised), the RSAA also held that the particular
social group category was not an appropriate Convention ground for so-called
one child family cases. This issue will be returned to shortly.
 Generally speaking, the
RSAA has applied what is known in some jurisdictions as the "Internal Flight
Alternative "(IFA), though we have chosen to call it the "Relocation Principle",
as an enquiry whether there is an Internal Flight Alternative is an enquiry
based on the wrong question. The question is not one of flight, but of
protection and is to be approached fairly and squarely in terms of the
refugee definition which specifically emphasises the protection issue.(23)
The Relocation Principle was formulated
in New Zealand within months of the Authority's first hearings, but has
been developed since then in a line of cases which have established that
relocation turns on two issues:
(a) Can the individual genuinely
access domestic protection which is meaningful?
(b) Is it reasonable, in all the circumstances
to expect the individual to relocate?
In other words, before an individual
possessing a well-founded fear of persecution can be expected to relocate
within the country of origin, it must be possible to say both
that meaningful domestic protection can be genuinely accessed by that person
and that in all the circumstances, it is reasonable for that
individual to relocate.(24)
We have recognised that where the
claimant has suffered torture at the hands of a state agent, there are
a number of circumstances which might make it unreasonable to expect the
individual to relocate with the result that the IFA alternative will not
apply.(25) This jurisprudence is analogous
to the "compelling reasons" exception to the cessation provisions of Article
1C(5) and (6) of the Refugee Convention.(26)
 In assessing whether it
is reasonable to expect an individual to relocate, the RSAA recognises
that gender-related issues must be taken into account, as the following
(a) In Refugee
Appeal No. 497/92 Re KG (3 February 1994) 6, it was held that a 23
year old single female Tamil who lived in Jaffna and who feared persecution
at the hands of the LTTE could not safely relocate in Colombo because:
"She is a single woman. She is not
particularly intelligent. As a single Tamil woman she would be vulnerable
to the security sweeps which occur from time to time among young Tamils.
She has no command of Sinhala. She would have difficulty in obtaining employment
because of her lack of work skills and she would have difficulty in obtaining
accommodation since her only relatives there are proposing to leave the
country and other landlords are reluctant to accept Tamils as tenants.
Importantly too she will be bereft
of her older, better-qualified sister and in relation to the security sweeps
that she may encounter, she may experience further difficulties because
of her admitted LTTE links in the past."
(b) In Refugee Appeal
No. 1867/93 Re SCDC (9 June 1994) 9, a Peruvian woman who had suffered
rape at the hands of a terrorist group she had refused to join was not
expected to relocate because of the trauma she had suffered.
(c) In Refugee
Appeal No. 790/92 Re B (9 August 1994) 8, a 34 year old woman of the
Sikh faith was not expected to relocate because (inter alia) she would
be returning to India as a woman alone without relatives to protect her.
She would be in a culture very protective of its women and inclined to
regard lone women as of low character.
Similar conclusions were reached in
two other cases involving Sikh women from the Punjab, namely, Refugee
Appeal No. 755/92 Re BK and MK (19 August 1994) 5 and Refugee Appeal
No. 1439/93 Re RK (6 June 1995) 14. In the latter case, the RSAA took
into account the following factors in its assessment of the reasonableness
element of relocation:
"The appellant has been subjected
to maltreatment while in police custody. She has been detained, and restrained
and beaten to the extent that she suffered injuries to her wrists and wounds
to her back. She was also threatened with the degradation and trauma of
being stripped naked and raped by police officers; the injuries sustained
due to the police maltreatment were such that she has suffered a continuing
disability; members of her family have been continuously subjected to police
harassment and recently her father has been detained, her siblings and
uncle are now in hiding because of fear of the police. It is more than
likely that the appellant herself would need to go into hiding should she
return to India- it would be unreasonable to expect the appellant to return
to her country of origin and survive only by going underground."
 it is now intended to address
the Convention grounds issues.
 Generally speaking, New
Zealand has adopted a purposive interpretation of the five Convention grounds.
That is, the RSAA has endeavoured to respect the specific situations known
to the drafters of the Convention, while at the same time maintaining the
Convention as a relevant and contemporary human rights instrument.
 In the present context,
it is intended to address only two of the Convention grounds, namely, political
opinion and particular social group, being the two grounds which most often
arise for consideration in gender-based cases.
 One of the often repeated
complaints is that too often in asylum adjudication, women's experiences
are not recognised as "political" due to the skewed interpretation of a
largely male orientated body of law which privileges male-dominated public
activities over the activities of women which take place largely in the
private sphere. So that in some countries there has been a failure to recognise
the political nature of seemingly private acts of and harm to women.(27)
 In New Zealand the interpretation
of "political opinion" is very similar to that in Canada as succinctly
expressed in Canada (Attorney-General) v Ward  2 SCR 689,
"Political opinion as a basis for
a well-founded fear of persecution has been defined quite simply as persecution
of persons on the ground 'that they are alleged or known to hold opinions
contrary to or critical of the policies of the government or ruling party';
see Grahl-Madsen supra at p 220. The persecution stems from the
desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen's
definition assumes that the persecutor from whom the claimant is fleeing
is always the government or ruling party, or at least some party having
parallel interests to those of the government. As noted earlier, however,
international refugee protection extends to situations where the state
is not an accomplice to the persecution, but is unable to protect the claimant.
In such cases, it is possible that a claimant may be seen as a threat by
a group unrelated, and perhaps even opposed, to the government because
of his or her political viewpoint, perceived or real. The more general
interpretation of political opinion suggested by Goodwin-Gill, supra,
at p 31, ie, 'any opinion on any matter in which the machinery of state,
government, and policy may be engaged', reflects more care in embracing
situations of this kind.
 However, while a definition
may be couched in wide, gender-neutral language, the application of that
definition is quite another thing again. For if the political nature of
seemingly private acts of and harm to women is not recognised, a gender-related
claim is no better off. It is in this sense that decision-makers are now
being called on to recognise and apply a different understanding
of "political opinion" in the gender context and it is an understanding
which may not necessarily emerge from the bare words of the Ward
passage cited above.
Two refinements must be added to the
definition of this category. First, the political opinion and issue need
not have been expressed outright. In many cases, the claimant is not even
given the opportunity to articulate his or her beliefs, but these can be
perceived from his or her actions. In such situations, the political opinion
that constitutes the basis for the claimant's well-founded fear of persecution
is said to be imputed to the claimant. The absence of expression in words
may make it more difficult for the claimant to establish the relationship
between that opinion and the feared persecution, but it does not preclude
protection of the claimant.
Second, the political opinion ascribed
to the claimant and for which he or she fears persecution need not necessarily
conform to the claimant's true beliefs. The examination of the circumstances
should be approached from the perspective of the persecutor, since that
is the perspective that is determinative in inciting the persecution. The
political opinion that lies at the root of the persecution, therefore,
need not necessarily be correctly attributed to the claimant. Similar considerations
would seem to apply to other bases of persecution."
 In New Zealand, the understanding
of the political element of gender-based persecution has development incrementally.
In Refugee Appeal No. 445/92 Re FB (4 November 1992) 3, 6, the RSAA
accepted that the political opinion ground was satisfied in a case where
the claimant, an Iranian woman, had joined a small group of like-minded
women who were dedicated to improving the life of people in general and
women in particular. They issued pamphlets with a circulation of about
250, copies of which were expected to be passed on from trusted friend
to trusted friend. These pamphlets would carry reports made by this group
of complaints by women of attacks made on them and the restrictions imposed
upon them. The group travelled about the country from time to time making
investigations and compiling reports about such incidents.
In Refugee Appeal No. 915/92 Re
SY (29 August 1994) 11, the RSAA held that the motivation of the strict
enforcement of the dress code in Iran is primarily political and that transgression
of the Islamic laws directed to the control of women's public behaviour
should be regarded as persecution on the grounds of imputed political opinion
(opposition to the regime) rather than membership of a particular social
group. The decision did not, however, articulate the basis for this ruling
and it was, as mentioned, confined to "public" behaviour. As will be seen
in the next paragraph, New Zealand jurisprudence has now perhaps moved
beyond this point.
 In Refugee Appeal No.
2039/93 Re MN (12 February 1996), the RSAA was confronted with an unusual
set of facts. The appellant, a single Iranian woman of Arab ethnicity,
sought refugee status on two separate grounds. First, at the family level
she opposed the patriarchal society comprising her extended Arab family.
Second, at the state level she was opposed to the male domination of women
in Iranian society at large. The RSAA held that her claim succeeded on
As to the family level, the evidence
established that Iranian-Arab society uses not only tribal social values,
but also Islamic ideology as tools to control women. The decision took
into account the Arab concept of honour and shame which is generally linked
to the sexual conduct of women. It was established that two female members
of the claimant's extended family had been murdered by male relatives for,
in one case, marriage outside the "family" and in another, for being found,
on her wedding night, not to be a virgin. The claimant herself, subsequent
to her arrival in New Zealand, had formed a relationship and become pregnant.
Uncertain as to her future, she underwent an abortion. She feared death
at the hands of male family members as a result. She also described a process
of growing self-awareness that led her to question the way in which all
decisions as to a woman's future (including whether she would be educated)
were made by the father or (subsequent to the father's death) the eldest
brother. She was offended by the implications of arranged marriages and
in particular by the rigid insistence of her tribal group on marriage between
cousins. She also described vividly the effect on her sisters of such marriages
and the consequences of polygamy on female relatives.
On the broader societal plane, she
described merciless harassment by the Komiteh at her place of work caused
by her failure to disguise her views on what she believed was the oppression
of women in Iran and was, over a period of years, driven to mental exhaustion.
She reached breaking point. She was never arrested, detained or physically
ill-treated by the authorities. She was described in the decision (at p
12) in the following terms:
"The appellant is as opposed to the
oppression of women in Iranian society as she is to the oppression of women
within her own family or tribal group, and little point would be served
by traversing her evidence in that regard. It is sufficient to note that
the appellant is an intelligent and perceptive woman whose experiences
and mature years have led her to an awareness of the value of human rights
(particularly the principle of non-discrimination), the inherent worth
of the individual, and the pressing need in her own life to be free of
the dictates of others and to be able to make her own choices on fundamental
aspects of existence such as marriage, child rearing, education, employment
and personal expression, including her dress, appearance and relationships
with others. We have already mentioned the process of self-awareness described
in her evidence which led her to question the basic assumptions underlying
the relationship between male and female in both her family setting and
within in Iranian society at large."
 The RSAA's assessment of the
persecution element of this case pursuant to the hierarchy of rights has
already been described. As to the appropriate Convention ground, the RSAA
analysed first the claimant's case at the state or broader societal level
and concluded, in the rather extreme Iranian context, that behind the facade
of religion was a system for the acquisition and maintenance of political
power by men, a system from which women are purposefully excluded.
As to the persecution feared at the
hands of family members, the conclusion reached was that the same system
which operated at state level operated at the family level. In short, it
was found that the denial of women's civil and political rights at state
level mirrored their denial at family level, and vice versa. In short,
the facts established that there was no public/private distinction. The
religious and political imperatives operated to an equal degree and on
the same plane in both spheres.
The refugee application accordingly
succeeded on the political opinion ground in respect of the persecution
feared at the hands of male members of the claimant's family as well as
in respect of the persecution feared at the hands of state agents.
 Hopefully, in the light
of these cases, the New Zealand jurisprudence on gender-based persecution
will continue to evolve an understanding of the political nature of seemingly
private acts of and harm to women.
 From the outset, the RSAA
has accepted that it is not necessary that a refugee claimant actually
hold a political opinion. It is sufficient if one is imputed by the agent
of persecution. The Authority's jurisprudence in this regard is now supported
by Ward in the passage cited earlier and we have managed to avoid
the perhaps over-refined subtleties which can sometimes be read into fact
situations as has perhaps happened in the United States following the decision
in INS v Elias-Zacarias 112 S.Ct. 812 (1992) (SC:US).
 It is common to encounter
situations where, because one member of a family has engaged in "illegal"
political activities, the authorities (or opposing non-state groups) suspect
that other members of the family hold the same political opinions. If this
results in the other family members holding a well-founded fear of persecution,
either at the hands of state or at the hands of non-state agents of persecution,
the imputed political opinion qualifies under the Convention
Thus, in Refugee Appeal No. 790/92
Re B (9 August 1994) 7, a refugee application was made by a 34 year
old Punjabi woman who came from a family in which one of her brothers was
a member of a violent terrorist organisation. The family (including the
claimant) gave food and shelter to members of this group on several occasions.
The parents and the claimant were eventually arrested by the authorities
and suffered considerable abuse. When the claimant was arrested a second
time, her brother surrendered himself in order to secure her release. The
claimant then left India but subsequently learned that the authorities
in the Punjab were looking for her. She was granted refugee status on the
basis of her imputed political opinion.
 This does not mean that,
where women are politically active in their own right that this is not
recognised. In Refugee Appeal No. 1947/93 Re SYGL (14 October 1994),
a Peruvian woman who, together with her husband, had been active in a particular
political party, was recognised as having a claim in her own right to a
political profile, even though her husband's profile was larger and more
significant. Her fear of persecution stemmed not only from the husband's
political activities, but from her own as well. In the case of the two
Burmese sisters in Refugee Appeal No. 1857/93 Re MPN and Refugee Appeal
No. 1858/93 Re KHN (31 July 1995) specific recognition was given to
the significance of the separate political activities in which the separate
sisters had individually engaged.
One Child Family Cases
 In Refugee Appeal No.
3/91 Re ZWD (20 October 1992), it was stated by the RSAA that opposition
to the one child policy, or opposition to forced sterilisation or abortion,
is not per se within the Refugee Convention "political opinion"
or "social group" grounds. But the RSAA does recognise that there will
be cases where the facts do establish a sufficiently "political" element
to the case for a political opinion (actual or imputed) to be found.
 For example, in Refugee
Appeal No. 750/92 Re QYM (14 June 1994) 13, the claimant was a nurse
from Guangdong province who had helped treat students injured in the pro-democracy
demonstration which led to the Tiananmen Square massacre in Beijing. In
the crackdown subsequent to 4 June 1989, she was questioned by her work
unit, had her salary reduced, and was forced to write self-criticism. The
accommodation provided by her work unit was also withdrawn and she received
no salary increases. Two years later she was dismissed because of her actions.
Subsequently, when she became pregnant she was forced to have an abortion
in her eighth month. The RSAA found on the facts that one of the principal
reasons for the forced abortion was not that she had broken the family
planning regulations, but because she had been identified by her activities
in helping students as an anti-government and anti-socialist element who
should not be allowed to have further children (she already had one son).
This imputed political opinion distinguished the case from Refugee Appeal
No. 3/91 Re ZWD and refugee status was granted.
The facts of Refugee Appeal No.
1253/93 Re LSS (9 September 1994) are similar in that pro-democracy
activities by the claimant led to her coming into conflict with a repressive
group in her work unit. On the facts it was found that the termination
of her pregnancy (also in the eighth month) was motivated by a desire to
punish her for her anti-government beliefs rather than for breach of the
family planning regulations.
On the other hand, claims in Refugee
Appeal No. 1444/93 Re DLH (29 September 1995) 11 and Refugee Appeal
No. 1682/93 Re ZRY (23 December 1994) 14 failed as there was no or
no sufficient political element for the facts to be brought within the
 The principal New Zealand
decision interpreting the social group category is Refugee Appeal No.
1312/93 Re GJ (30 August 1995) in which an Iranian homosexual sought
refugee status, arguing that sexual orientation can be the basis for finding
a social group. His application succeeded. The decision has implications
for lesbians as well as gay men.
 The decision in Refugee
Appeal No. 1312/93 Re GJ contains a detailed examination of the various
elements of a social group claim, including "for reason of", "group", "social
group", "particular" and "membership". The need for these separate elements
to be established is emphasised, with illustrations provided from Australia,
United States and Canadian law. The Authority was fortunate in being able
to draw heavily on the decision of the Supreme Court of Canada in Canada
(Attorney-General) v Ward  2 SCR 689 and to thus steer a middle
course between too expansive an interpretation on the one hand, and too
narrow an interpretation on the other. We decided that the key lay in the
statement in Ward at 734, 739 that the social group category is
informed by the anti-discrimination notions inherent in civil and political
It is to be recalled that in Ward,
it was held that in distilling the contents of the social group category,
it is appropriate to find inspiration in discrimination concepts. The manner
in which groups are distinguished for the purposes of discrimination law
can be appropriately imported into this area of refugee law. In short,
the meaning assigned to "particular social group" should take into account
the general underlying themes of the defence of human rights and anti-discrimination
that form the basis of the international refugee protection initiative:
Canada (Attorney-General) v Ward  2 SCR 689, 734, 735, 739
(SC:Can) adopted and applied by the RSAA in Refugee Appeal No. 1312/93
Re GJ (30 August 1995) 25-26.
 The decision in Refugee
Appeal No. 1312/93 Re GJ (30 August 1995) also examines the issue whether
a social group should be identified by the internal characteristics of
the group or whether the external perceptions of the group by society at
large, or the agent of persecution in particular, should be determinative.
The first approach is most notably exemplified by the Ward decision,
while the "objective observer" approach is seen in a 1983 decision of the
Verwaltungsgericht Weisbaden (Administrative Court in Weisbaden) in its
judgment of Apr. 26, 1983, No. IV/I E 06244/81.(28)
It was our conclusion that the difficulty with the "objective observer"
approach is that it enlarges the social group category to an almost meaningless
degree. That is, by making societal attitudes determinative of the existence
of the social group, virtually any group of persons in a society perceived
as a group could be said to be a particular social group. We were of the
view that the Refugee Convention was not intended to afford protection
to every such persecuted group and we once again relied on the Ward
decision.(29) The following passage from
the New Zealand decision relies on United States and Canadian jurisprudence,
as well as the opinion of Professor Hathaway:
"Herein lies the significance of the
interpretative approach to the Refugee Convention discussed at length earlier
in this decision and which recognises that the grounds of race, religion,
nationality and political opinion focus on the claimant's civil and political
rights. The Acosta ejusdem generis interpretation of "particular
social group" firmly weds the social group category to the principle of
the avoidance of civil and political discrimination. In this way, the potential
breadth of the social group category is purposefully restricted to claimants
who can establish a nexus between who they are or what they believe and
the risk of serious harm: Ward 738-739; Hathaway, The Law of
Refugee Status (1989) 137. For the nexus criterion to be satisfied,
there must be an internal defining characteristic shared by members of
the particular social group. In the Acosta formulation, this occurs
when the members of the group share a characteristic that is beyond their
power to change, or when the shared characteristic is so fundamental to
their identity or conscience that it ought not be required to be changed.
In the very similar Ward formulation, the nexus criterion is satisfied
where there is a shared defining characteristic that is either innate or
unchangeable, or if voluntary association is involved, where that Association
is for reasons so fundamental to the human dignity of members of the group
that they should not be forced to foresake the association.
 The view can be taken that
an interpretational approach to the social group category which is inspired
by discrimination concepts is particularly appropriate to gender-related
claims, where so often the principal feature of the case is discrimination.
In this way, recognition is given to
the principle that refugee law ought to concern itself with actions which
deny human dignity in any key way: Hathaway op cit 108 approved
in Ward at 733.
On this interpretation, the issue of
sexual orientation presents little difficulty. As we have earlier remarked,
sexual orientation is a characteristic which is either innate or unchangeable
or so fundamental to identity or to human dignity that the
individual should not be forced to foresake or change the characteristic.
Sexual orientation can, therefore,
in an appropriate fact situation, be accepted as a basis for finding a
social group for the purposes of the Refugee Convention."
 These principles have
been recently examined in the decision already referred to involving a
gender-based claim by an Iranian-Arab woman, namely, Refugee Appeal
No. 2039/93 Re MN (12 February 1996) at 49-52. There the RSAA explicitly
recognised that the social group limb of the Convention may (depending
on the facts) be particularly relevant to gender-related asylum claims.
However, the real significance of
this decision to gender-based claims based on membership of a social group
may lie in its discussion of the difficulties which arise when the social
group and political opinion grounds overlap. The problem was particularly
acute on the facts as the claimant succeeded so emphatically on the political
opinion ground. Was there any need in those circumstances for the RSAA
to consider the social group aspect of the case? The RSAA decided that
in the circumstances of the case the claimant was entitled at least to
an indication of the Authority's preliminary views. The reasons given for
taking this step were as follows:
(a) Too often gender
issues are deliberately, but unjustifiably avoided in the refugee context.
This tendency can be exacerbated in common law jurisdictions (such as New
Zealand), where jurisprudence is developed on a case by case basis and
where decision-makers generally prefer to avoid deciding issues which do
not directly arise for determination.
(b) There is a real
issue as to whether it is appropriate for refugee determination to focus
on political opinion to the exclusion of the social group element when
gender issues are raised (p 50):
"An approach to refugee determination
which unjustifiably favours the political opinion ground to the exclusion
of the social group ground will tend to reinforce the male gender bias
often complained of by female asylum-seekers, and inhibit the development
of a refugee jurisprudence which properly recognises and accommodates gender
issues within the legitimate bounds of the Refugee Convention."
(c) Because the social
group and political grounds will often overlap, it is important to prevent
a claim of persecution based on political opinion to masquerade as persecution
based on social group, and to prevent a social group claim to masquerade
as a political opinion case. Analysis of both grounds is required in order
to accurately identify the most appropriate finding, or, as the case may
be, to fairly recognise that the claim succeeds equally on both grounds.
 Against this background,
the RSAA arrived at the tentative and preliminary view (p 52) that the
claimant did belong to a social group which, loosely defined, was said
"... women who, as a result of their
deeply held values, beliefs, and convictions, reject or oppose the way
in which they are treated in Iran, and the attendant power structure which
perpetuates and reinforces the so-called 'Islamist' justification for this
state of affairs."
However, the RSAA cautioned that because
the terms of this definition contain a considerable political dimension,
the definition might have to be refined in the future to avoid the criticism
that it is a claim of persecution based on political opinion masquerading
as persecution based on a social group.
 Overall it is possible
to say, however, that the RSAA has taken a position(30)
which, while not identical to, nevertheless sustains Excom Conclusion
No. 39 (XXXVI) Refugee Women and International Protection (1985) para
(k) in which the Executive Committee of the UNHCR:
"Recognized that States, in
the exercise of their sovereignty, are free to adopt the interpretation
that women asylum-seekers who face harsh or inhuman treatment due to their
having transgressed the social mores of the society in which they life
may be considered as a 'particular social group' within the meaning of
Article 1A(2) of the 1951 United Nations Refugee Convention."
 The following cases illustrate
other aspects of New Zealand's gender-based jurisprudence.
 In Refugee Appeal No.
80/91 Re NS (20 February 1992) 11, the RSAA recognised as a refugee
a Moslem woman whose husband was serving a lengthy term of imprisonment
in New Zealand on drugs charges. She had married the man by proxy two days
before her arrival in New Zealand, the drug offences having been committed
subsequent to her arrival. She claimed that if she had to return to India
without her husband, she would be placed in a difficult position. The RSAA
found that she belonged to a particular social group comprising:
"... Moslem women living separate
from their husbands in a Moslem community with no accommodation and no
male family or financial support available to them and with a reputation
for having transgressed the mores of their community."
 As mentioned, in Refugee
Appeal No. 2039/93 Re MN (12 February 1996) 52, the RSAA was of the
preliminary (but undecided) view that there was a particular social group
in Iran which could be loosely defined as:
"... women who, as a result of their
deeply held values, beliefs, and convictions, reject or oppose the way
in which they are treated in Iran, and the attendant power structure which
perpetuates and reinforces the so-called "Islamist" justification for this
state of affairs."
 Although no refugee claim
has yet been advanced by a woman on the basis of her sexual orientation,
the possibility of this occurring in the future is enhanced by the Authority's
decision in Refugee Appeal No. 1312/93 Re GJ (30 August 1994) 58
which recognised that:
"... homosexuals in Iran are a cognisable
social group united by a shared internal characteristic, namely, their
sexual orientation. We also find that homosexuality is either an innate
or unchangeable characteristic, or a characteristic so fundamental to identity
or human dignity that it ought not be required to be changed."
 Where an individual is
sought by the authorities for actual or suspected political activities
of an "illegal nature", it is not uncommon to find that family members
are harassed, and at times persecuted, in an effort to locate the whereabouts
of the wanted person, or to place pressure on that person to surrender
to the authorities. Because it is often the male member of the household
who is sought by the authorities, it is usually the female members (mother,
wife or sisters) who face this "indirect" form of persecution. In New Zealand,
such family members have been recognised as members of a particular social
group, namely, the family of the person wanted by the authorities.
 So in Refugee Appeal
No. 547/91 Re NS (2 June 1994) the claimant, an Iranian woman, was
married to an accountant who was employed at an Iranian government ministry.
Her husband's immediate superior was in the habit of helping himself to
equipment at various times from the Ministry without paying for it. This
became a matter of dispute between them when a large warehouse full of
heavy duty road equipment and the like "disappeared". When the husband
confronted his superior with the dishonest misappropriation of the equipment,
he was answered with a threat that he (the husband) would be denounced
to the authorities as the thief. The husband immediately went into hiding.
Thereafter, the family was persistently harassed by the Komiteh and the
Pasdaran. This involved the family home being invaded without warning at
all hours of the day or night, the house being searched, the claimant and
her family being threatened, shouted at and abused. There was also a warning
that the eldest daughter would be kidnapped. This continued for five years.
In addition, the Pasdars persistently visited the institute where the woman
conducted her business, hanging about the entrance to the premises, shouting
abuse and threats at her. When obtaining the annual licence for her business,
she was once obliged to pay double taxes for no reason. In addition, the
authorities persistently made unreasonable demands on her in relation to
the standard of her premises, making requisitions for repairs and alterations
which she considered to be totally unjustified. Eventually, her business
was closed down by the authorities who ordered her out of the premises,
removed her belongings into the street and sealed the premises. No reason
was given for this action, but it was clear it was related to the fact
that the authorities were in pursuit of her husband. It is to be noted
that there was no overt religious or political element to the husband's
dispute with his superior, or the interest that the authorities subsequently
paid in his wife. On these facts, the RSAA held that such elements were
not necessary. The wife was being persecuted simply because she was a member
of the fugitive's family, and it is recognised in most jurisdictions that
the family is a social group. The decision stated at p 10:
"We find that the family is entitled
to stand alone under the Convention as a particular social group and that
the source of the persecution need only lie in membership of the family
group for the protection of the Convention to be invoked.
 Similarly, in Refugee Appeal
No. 755/92 Re BK and MK (19 August 1994), refugee status was granted
to a young Punjabi woman who had been persecuted by authorities who wanted
her husband, a suspected terrorist. See also Refugee Appeal No. 1439/93
Re RK (6 June 1995) 14.
Accordingly, we find that the appellant
and her children fear persecution for the Convention reason of membership
of a particular social group."
In Refugee Appeal No. 790/90 Re
B (9 August 1994) 14, the claimant there succeeded on the imputed political
opinion ground and, for that reason, the Authority found it unnecessary
to consider a submission that the claimant also fell into the social group
category by virtue of being "a woman alone in India". The Authority noted,
however, that there was possibly some substance to the submission.
 Given the relatively small
number of gender-based refugee claims received in New Zealand, there have
been no domestic violence cases to date. In this regard, the Canadian experience
seems to be that even where the volume of refugee claims on an annual basis
is comparatively high, the number of domestic violence cases is small.
The absence in New Zealand of "guidelines" as found in both Canada and
the United States addressing domestic violence cases may therefore be of
debatable significance. However, there is evidence that the National Collective
of Independent Women's Refuges in New Zealand has in the past fielded enquiries
from women who wish to seek refuge in New Zealand and, on occasion, those
enquiries have specifically raised questions of refugee status: Susannah
Downing, Caught in his Castle: Getting Women Across the Moat - Domestic
Violence and Refugee Status (May 1994).(31)
 No female genital mutilation
cases have been heard to date by the RSAA.(32)
R P G Haines
New Zealand Refugee Status Appeals
1. The Author of
this paper is Deputy Chairperson of the New Zealand Refugee Status Appeals
2. New Zealand Treaty
Series 1961 Number 2.
3. New Zealand Treaty
Series 1973 Number 21.
4. Note, however,
that New Zealand has a small population base of just over 3 million people,
and this must be taken into account when analysing statistics.
5. Immigration Regulations
1991, First Schedule (SR 1991/241). The countries are presently Australia,
Austria, Belgium, Brunei, Canada, Denmark, Finland, France, Germany, Greece,
Iceland, Indonesia, Ireland, Italy, Japan, Kiribati, Korea, Republic of
Liechtenstein, Luxembourg, Malaysia, Malta, Monaco, Nauru, Netherlands,
Norway, Portugal, Singapore, Spain, Sweden, Switzerland, Thailand, Tuvalu,
United States of America, United Kingdom.
6. Immigration (Transit
Visas) Regulations 1994 (SR 1994/106) as extended by the Immigration (Transit
Visas-Extension) Regulations 1995 (SR 1995/122). The countries are Afghanistan,
Bangladesh, Bulgaria, People's Republic of China, Ethiopia, Ghana, India,
Iran, Iraq, Libya, Myanmar, Pakistan, Somalia, Sri Lanka, Syria, Turkey,
7. Immigration Act
1987, section 125(6) and (7).
8. R P G Haines,
Report on the Legal Condition of Refugees in New Zealand (1995)
para 12 p 4.
9. New Zealand Immigration
Service, Refugee Women: The New Zealand Refugee Quota Programme
(1994) 9 fn 7. By way of contrast, of those refugees who are accepted
for resettlement under the New Zealand Refugee Quota Programme, approximately
60 per cent are men and 40 per cent women: New Zealand Immigration Service
op cit 9, fn 7. There are 800 placed per year in the resettlement
programme, but the quota is not always filled. See R P G Haines, Report
on the Legal Condition of Refugees in New Zealand (1995) para 9 p 3:
further R P G Haines, Report on the Legal Condition of Refugees in New
Zealand (1995) para 12 p 4; (1994) 7 JRS 260, 261.
|1 April 1990
- 30 June 1991
|1 July 1991
- 30 June 1992
|1 July 1992
- 30 June 1993
|1 July 1993
- 30 June 1994
|1 July 1994
- 30 June 1995
|1 July 1995
- 31 December 1995
Singh v Refugee Status Appeals Authority  NZAR 193 (Smellie J).
Appeal No. 523/92 Re RS (17 March 1995) 19.
example, where allegations are made that an officer of the Immigration
Service has acted improperly in his or her dealings with the appellant:
Refugee Appeal No. 523/92 Re RS (17 March 1995) 7.
vast majority of asylum claims are received in Auckland, the principal
point of entry to New Zealand.
R P G Haines, "Identifying Refugees: Immigration Law Seminar", Auckland
District Law Society (1990) 6.
Faculty of Law, University of Auckland, New Zealand, May 1994.
Refugee Appeal No. 2039/93 Re MN (12 February 1996) 18.
Doreen Marie Indra, "Ethnic Human Rights and Feminist Theory: Gender Implications
for Refugee Studies and Practice" (1989) 2 JRS 221 and Jacqueline Greatbatch,
"The Gender Difference: Feminist Critiques of Refugee Discourse" (1989)
1 IJRL 518.
James C Hathaway, The Law of Refugee Status (1991) 101-124.
Guy S Goodwin-Gill, The Refugee in International Law (1983) 38,
Refugee Appeal No. 2039/93 Re MN (12 February 1996) 22-28.
example, Excom Conclusion No. 64 (XL1) Refugee Women and International
Protection (1990) singles out CEDAW for specific mention. Oddly, the
United States Immigration and Naturalization Service Considerations
for Officers Adjudicating Asylum Claims from Women (May 1995) 72 Interpreter
Releases 771, 781 (June 5, 1995) make no direct reference to the ICCPR
while CEDAW receives some prominence.
1A(2) of the Convention relevantly provides:
"... is unable or ... is
unwilling to avail himself of the protection of that country".
See Refugee Appeal No.
11/91 Re S (5 September 1991) 10-19.
Appeal No. 135/92 Re RS (18 June 1993) 25-27 and Refugee Appeal
No. 523/92 Re RS (17 March 1995) 31-32.
Appeal No. 135/92 Re RS (18 June 1993) 27-40.
"compelling reasons" exception to cessation of refugee status applies only
to so-called statutory refugees, ie, those refugees falling under Article
1A(1). However, the Executive Committee of the High Commissioner's Programme
has recommended that the "compelling reasons" exception be applied also
to refugees falling under Article 1A(2). See Conclusion No. 69: Cessation
of Status para (e) (1992).
further Nancy Kelly, "Gender-Related Persecution: Assessing the Asylum
Claims of Women" 26 Cornell Int'l LJ 625, 628 (1993).
Authority did not have access to the full text of this decision. It relied
on the summary of the case provided by Maryellen Fullterton in "Persecution
due to Membership in a Particular Social Group: Jurisprudence in the Federal
Republic of Germany" (1990) 4 Geo.Immigr LJ 381, 408.
particularly Refugee Appeal No. 2039/93 Re MN (12 February 1996)
Faculty of Law, University of Auckland, New Zealand, May 1994.
is of interest to note that, in New Zealand, from 1 January 1996, female
genital mutilation was made a criminal offence: Crimes Act 1961 ss 204A
and 204B. The latter provision makes it an offence to cause any child under
the age of seventeen years (being a child who is a New Zealand citizen
or who is ordinarily resident in New Zealand) to be sent or taken out of
New Zealand with intent that there be done, outside New Zealand, any act
involving female genital mutilation.