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
Deputy Chairperson
New Zealand Refugee Status Appeals Authority
PO Box 90251, Auckland Mail Centre, Auckland, New Zealand
February 1996



    The Refugee Status Branch - Gender Composition 
    The Refugee Status Appeals Authority - Gender Composition 

    Credibility Assessment 

    Cultural Relativity 
    Women from Iran 
    Sexual Violence 
    Forced Sterilisation and Abortion 
    Relocation/Internal Flight Alternative 


    Imputed Political Opinion 
    Actual Political Opinion 
    PRC One Child Family Cases 

    Women Without Protection 
    Iranian Women 
    Sexual Orientation:  Lesbians  
    The Family 
    Domestic Violence 
    Female Genital Mutilation 

Rodger PG Haines(1)

[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".

[2] 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 in number.(6)

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)

[3] The number of spontaneous refugee applications lodged in New Zealand over recent years have been as follows:(8)

1987 27
1988 145
1989 330
1990 600
1991 1,200
1992 771
1993 347
1994 423
1995 523
[4] 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)
[5] 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.
[6] 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)
[7] 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.
The Refugee Status Branch - Gender Composition
[8] 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.
[9] Of the seventeen immigration officers currently employed by the Refugee Status Branch, eleven (or 65%) are women.
[10] 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.
The Refugee Status Appeals Authority - Gender Composition

[11] 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.

[12] The support staff (or secretariat) of the Authority, with whom appellants have the most contact, are, with one exception, all women.
[13] 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.
[14] 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 refugee claimants.
[15] 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 are persecuted.

[16] 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)
[17] 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 (May 1994).(16)

[18] 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 same.
[19] 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.
[20] 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: [21] 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: 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.

Credibility Assessment
[22] 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.
[23] 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:

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 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.
[24] 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.

[25] 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.
[26] 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:

[27] 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, political opinion).
[28] 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.
[29] 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 [1993] 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: 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 and that: 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.
[30] 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 [1993] 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 analysis.(17)
It can therefore be said that New Zealand jurisprudence explicitly recognises that non-state or "private" violence can constitute grounds for refugee status.(18)
[31] 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)
[32] 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)
[33] These four principles can have a profound effect on gender-based claims as the following cases might illustrate.

[34] 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.
[35] 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:

[36] 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 instrument.

Cultural Relativity
[37] 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.
[38] 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 violence.
[39] 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.
[40] 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.
Women from Iran
[41] 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 dress code.
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.
[42] 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.
[43] 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:

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.
[44] 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.

Sexual Violence
[45] 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.

[46] 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.
[47] 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 status.
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.
Forced Sterilisation and Abortion
[48] 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.
Relocation/Internal Flight Alternative
[49] 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)
[50] 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 cases illustrate:
(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:

(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:

[51] it is now intended to address the Convention grounds issues.
[52] 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.
[53] 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.
[54] 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)
[55] In New Zealand the interpretation of "political opinion" is very similar to that in Canada as succinctly expressed in Canada (Attorney-General) v Ward [1993] 2 SCR 689, 746 (Can:SC): [56] 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.
[57] 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.
[58] 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 both limbs.
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: [59] 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.
[60] 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.
Imputed Political Opinion
[61] 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).
[62] 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.
Actual Political Opinion
[63] 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.
PRC One Child Family Cases
[64] 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.
[65] 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 Convention.
[66] 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.
[67] 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 [1993] 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 rights.
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 [1993] 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.
[68] 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: [69] 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.
[70] 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):

(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.

[71] 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 to comprise:

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.
[72] 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: [73] The following cases illustrate other aspects of New Zealand's gender-based jurisprudence.
Women Without Protection
[74] 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: Iranian Women
[75] 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: Sexual Orientation: Lesbians
[76] 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: The Family
[77] 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.
[78] 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: [79] 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.
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.
Domestic Violence
[80] 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)
Female Genital Mutilation
[81] No female genital mutilation cases have been heard to date by the RSAA.(32)
R P G Haines
Deputy Chairperson
New Zealand Refugee Status Appeals Authority
February 1996
1. The Author of this paper is Deputy Chairperson of the New Zealand Refugee Status Appeals Authority.

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, Zaire.

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:

1 April 1990 - 30 June 1991 993
1 July 1991 - 30 June 1992 619
1 July 1992 - 30 June 1993 412
1 July 1993 - 30 June 1994 737
1 July 1994 - 30 June 1995 822
1 July 1995 - 31 December 1995 533
10. See 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.

11. Santokh Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J).

12. Refugee Appeal No. 523/92 Re RS (17 March 1995) 19.

13. For 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.

14. The vast majority of asylum claims are received in Auckland, the principal point of entry to New Zealand.

15. See R P G Haines, "Identifying Refugees: Immigration Law Seminar", Auckland District Law Society (1990) 6.

16. Dissertation, Faculty of Law, University of Auckland, New Zealand, May 1994.

17. See Refugee Appeal No. 2039/93 Re MN (12 February 1996) 18.

18. Compare 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.

19. See James C Hathaway, The Law of Refugee Status (1991) 101-124.

20. See Guy S Goodwin-Gill, The Refugee in International Law (1983) 38, 39.

21. See Refugee Appeal No. 2039/93 Re MN (12 February 1996) 22-28.

22. For 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.

23. Article 1A(2) of the Convention relevantly provides:

See Refugee Appeal No. 11/91 Re S (5 September 1991) 10-19.

24. Refugee Appeal No. 135/92 Re RS (18 June 1993) 25-27 and Refugee Appeal No. 523/92 Re RS (17 March 1995) 31-32.

25. Refugee Appeal No. 135/92 Re RS (18 June 1993) 27-40.

26. The "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).

27. See further Nancy Kelly, "Gender-Related Persecution: Assessing the Asylum Claims of Women" 26 Cornell Int'l LJ 625, 628 (1993).

28. The 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.

29. At 732.

30. See particularly Refugee Appeal No. 2039/93 Re MN (12 February 1996) 53.

31. Dissertation, Faculty of Law, University of Auckland, New Zealand, May 1994.

32. It 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.