Presentation for 2009 National Members'
Conference of the Migration Review Tribunal
and Refugee Review Tribunal

Thursday, 10 September 2009

Rodger Haines, QC*



Honour killings and honour suicides  [10] 

State protection in Turkey  [14]


Credibility  [15]

Assessment of the risk of harm 




Treaty interpretation and guidelines  [20]

Gender claims and power structures  [21]

Abstract definitions of “political opinion” unhelpful  [22]

The importance of the principle of non-discrimination  [24]

The importance of mainstreaming refugee claims by women  [25]

[1] The facts of Refugee Appeal No. 76044 [2008] NZAR 719 (NZRSAA) were inauspicious.1  First, it was the claimant’s second refugee application and her third appearance before the Refugee Status Appeals Authority (RSAA).  On her first and second appearances (in support of her husband’s claim and subsequently in support of her own claim) she had been described as a devious and untrustworthy witness.  Second, her new refugee claim was a repetition of the first until it was amended to plead that as she had left her husband, she could not return to Turkey.  Despite these difficulties the claimant was recognised as a refugee on the political opinion ground because her evidence on the reformulated claim was accepted as credible. 

[2] The possible significance of the case lies in its analysis of the political opinion ground and on the internal protection alternative.  In this short paper only the former is addressed.  It will be suggested that the facts underline yet again the necessity for the refugee definition to be given a gendered interpretation, a goal frequently stated but as frequently not achieved.  The decision might also illustrate the difficulties inherent in making credibility findings.


[3] The claimant was an Alevi Kurd from rural southeast Turkey where her father had a small farm.  The family was organised on the basis that the father held all the power and the women (particularly the daughters) were relegated to looking after the household and to working on the farm.  The claimant received only five years education, the view of her father being that her time was better spent working at home.  The father’s authority within the family was absolute and it was common for the claimant, her sisters and mother to be beaten if in his view they were carrying out their tasks inadequately or tardily.  The daughters were forbidden from speaking to any male person outside the family.

[4] At seventeen years of age the claimant was told by her father that she was to marry a man from a nearby village whose family were also farmers.  Over her protests she was taken one night to that man’s family home and left there.  When she begged her newly acquired mother-in-law to send for her parents to take her home, her father arrived to tell her that if she returned to his household he would kill her. 

[5] From that point on the claimant lived an unhappy life with a man for whom she had little affection and in whose household she was subject to the control of others, particularly her husband, his father and his mother.  She was regularly assaulted by both her husband and by her mother-in-law.

[6] Without consultation or explanation, the husband went to the UK where he made an unsuccessful refugee claim.  After being deported back to Turkey he travelled to New Zealand and lodged a refugee claim there.  His wife and two children were instructed to join him, which they did.  The husband’s refugee claim was based on his alleged active involvement in the People’s Democracy Party (HADEP).  The claimant herself lodged a separate refugee claim based on the assertion that she had been accused of supporting HADEP and the Kurdistan Workers’ Party (PKK).  After hearing the husband and the claimant giving evidence in support of the husband’s claim, the RSAA made the following adverse credibility findings:

[35] The Authority found the [husband] to be articulate and overbearing, a person whose demeanour suggested strongly that he would stop at nothing and say anything to achieve his goal of refugee status.  He prevaricated and attempted to avoid any questions which probed inconsistencies or areas where implausibility was exposed.  He resorted to launching into tirades, and presented generally as a devious and untrustworthy witness.
[36] The [husband’s] wife presented as being cast much in the same mould, and her evidence contained varying inconsistencies and generally, she displayed deviousness comparable with her husband’s.

[7] When the claimant’s own case came before the RSAA a second adverse credibility finding was made against her:

[34] For the reasons explained in Refugee Appeal No. 71750 it is beyond dispute that all claims made about the husband’s activities with HADEP are not credible.  Additionally having seen and heard from the appellant I am left in no doubt that her latest evidence on the same point is totally unreliable.  Her answers were vague and implausible and her demeanour highly emotional.  The constant refrain when asked for any detail beyond her mere reciting of the claim that several HADEP men used to come and see her husband was “I don’t know”.

[8] Undaunted, both the husband and the claimant lodged second refugee claims identical to the first.  Before the new claims could be heard, the husband attempted to kill the claimant preparatory to taking his own life.  Escaping the incident, the claimant removed her wedding ring and threw it at her husband, telling him that the marriage was over and that he was to leave.  That was the last time she saw her husband as he left New Zealand and returned to Turkey.  The day following the incident, however, he made a telephone call accusing his wife of having a new boyfriend and stating that it was his intention to kill her.  The following day the husband’s family in Turkey made four telephone calls saying that they had learnt from the husband that the wife had terminated the marriage.  They said that such a thing had never happened before in their family and was not permitted by the Kurdish community.  They told the wife that they (the husband’s family) were required to “cleanse their dignity” as they had been shamed in front of the entire Kurdish community.  The father-in-law, who held absolute authority within the husband’s family, stated that he would personally ensure that the wife was killed.  Similar telephone calls were made weekly thereafter.  Just before his return to Turkey the husband telephoned his wife to advise that on her return to Turkey he would cleanse his shame by killing her.  Subsequently the wife’s own family told her (through the couple’s youngest son) that it was a matter of honour that on her return to Turkey, her father or brothers would kill her.

[9] The wife’s second claim to refugee status was amended to plead that having terminated her relationship with an increasingly unstable, jealous and violent husband, she was now at risk in Turkey of being killed not only by him and his family, but also by her own family in order to maintain their “honour”.


Honour killings and honour suicides

[10] The country information on so-called “honour” killings in Turkey is substantial, much of it written by Turkish scholars.  The evidence shows that violence against women, including honour killings and rape are a widespread problem in Turkey.  Many of the murders occur in the Kurdish provinces where there is a deeply entrenched patriarchal and feudal system.  But honour crimes are not a uniquely Kurdish phenomenon nor are they properly associated with any particular society or religion. 

[11] The United States Department of State, Country Reports on Human Rights Practices for 2007: Turkey (March 2008) highlighted the connection between honour killings and what have come to be called “honour suicides”.  It records that after the government increased penalties for honour killings in 2005, family members increasingly pressured girls to kill themselves in order to preserve the family’s honour with the result that whereas the government reported that there were thirty-seven victims of honour killings during 2007 and 1,806 honour killings between 2001 to 2006, during the same period, 5,375 women committed suicide.  Helena Smith in “Hundreds Die in Turkey as Honour Suicides Replace Killings”, The Guardian Weekly, 31 August 2007, 3 reported that in Batman, a city of 250,000 situated in the southeast of Turkey, more than 300 women had attempted suicide since 2001.  Seven died in one month alone.  Smith reported that similar death rates were seen all over the southeast:

Sometimes adultery, or a wish for divorce, prompts an all-male family council to order a killing.  But the list of “offences” is long: rape, incest, pregnancy caused by both, ringing a radio chat show, exchanging eye contact with a boy or wearing skimpy clothing.

[12] So alarming is the phenomenon of honour suicides that in May 2006 Dr Yakin Ertürk, the UN Special Rapporteur on Violence Against Women, its Causes and Consequences and herself a citizen of Turkey, went on “mission” to investigate the suicides of women in eastern and southeastern Turkey and the claims that the deaths of these women may be instances of murder or forced suicide.  Her conclusions are to be found in the Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences: Mission to Turkey (22-31 May 2006) (A/HRC/4/34/Add.2 (5 January 2007)) (the Ertürk report).  The summary to the report records that the suicides occurring in the southeastern/eastern region of Turkey are “intimately linked to violence emanating from the understandings of honour and customary law”:  

There are reasonable grounds to assume that some of the recorded suicide cases are indeed disguised murders.  In other cases, family members appear to have instigated the suicide.

[13] Addressing the underlying reasons for the suicides Dr Ertürk concluded at para [47] of the body of the report that:

... the rigid patriarchal oppression of women and the human rights violations that go along with it - especially forced and early marriages, domestic violence, incestuous rape and denial of reproductive rights - [are] key contributing factors to the suicides of women in the region.  In the absence of adequate state protection, suicide may be the only option for women to escape extreme violence and oppression.

State protection in Turkey

[14] The country information reviewed in Refugee Appeal No. 76044 showed that violence against women was widely tolerated, and even endorsed by community leaders and at the highest levels of the government and judiciary.  The authorities rarely carried out thorough investigations into women’s complaints about violent attacks or murders or apparent suicides of women.



[15] The Authority at para [37] observed that any refugee claimant whose credibility as a witness has been comprehensively rejected by two successive panels of the RSAA faced an almost insurmountable hurdle in establishing her credibility on her third appearance before a new panel of the Authority.  However, the panel went on to find at para [39] that when giving evidence about her own life experiences and freed of the need to support the false claim to refugee status by her husband, the claimant was a credible and persuasive witness.  This favourable assessment of her credibility had been assisted by independent evidence corroborating the account of the attack by the husband and of domestic violence experienced within the family. 

[16] The following central elements of her claim were accepted:

(a)    That consequent upon the claimant terminating the marital relationship, the husband believed that he was duty bound to cleanse both his “honour” and that of his family by killing the claimant.

(b)    That the husband’s family would ensure that either the husband or someone else in the family killed the claimant.

(c)    That the claimant’s own father as well as a brother who lived in Istanbul felt equally bound by duty to kill the claimant to restore the “honour” of their family.

Assessment of the risk of harm

[17] The RSAA concluded at para [58] that it was satisfied that there was a real chance of the claimant being killed or otherwise seriously harmed by her husband or by family members.


[18] The Authority concluded that on the facts two Convention grounds were relevant to the case, namely political opinion and membership of a particular social group.  In the context of the case, the two grounds were not mutually exclusive and comfortably overlapped.  At para [69] the Authority observed that the social group ground did have the advantage of enjoying support from recent developments in refugee jurisprudence.  See for example R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL); Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 (NZRSAA); Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (HCA) and Fornah v Secretary of State for the Home Department [2007] 1 AC 412 (HL).  However, the Authority was also of the view that the political opinion ground was too often overlooked in cases involving gender-related persecution.  It found that the political opinion ground was, on the facts, the preferable of the two available grounds.


[19] The political opinion ground in the context of gender-based refugee claims was analysed by the Authority in the following terms:

1.    In refugee claims based on sex and gender there is a danger that the political opinion ground can be obscured by the social group ground.  Unthinking application of the seminal decision in Shah that gender may be the defining characteristic of a particular social group can lead to the unintended result that all cases involving gender-related persecution are conceived as “particular social group” cases and that if the female refugee claimant cannot bring herself within this Convention ground, the refugee claim must fail.  While it is possible for Convention grounds to overlap, it is best to identify the principal or strongest ground (or grounds) in relation to which the “for reasons” inquiry is to be conducted (see paras [72] and [73]).

R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL) and Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 (NZRSAA) referred to.

2.    While neither the refugee definition nor the Convention in general refers to sex or gender, this omission is without consequence.  The ordinary meaning of Article 1A(2) in its context and in the light of the object and purpose of the Convention requires the conclusion that the Convention protects both women and men and that it must therefore be given a gender-inclusive and gender-sensitive interpretation.  Account must also be taken of the power structures in the country of origin and in particular the civil, political, social, and economic position of the refugee claimant.  Gender is a primary way of signifying relationships of power (see paras [70] and [71]).

3.    Identification of the most appropriate Convention ground or grounds requires the decision-maker to go beyond the information relevant to risk.  “Culture” and “tradition” are not apolitical, nor are they detached from the prevailing power relations and the economic and social circumstances in which they operate.  Every deployment of tradition has its effects in terms of the distribution of power; honour crimes stand at the intersection of multiple political and social dynamics.  “Honour” is a form of rigid control of women by men.  It is about policing community norms and codes of behaviour, collective decisions and acts of punishment.  Ultimately, it is about the rigid patriarchal oppression of women.  On the facts, the observance of honour was a societal concern and reflected the gendered inequality of power (see paras [74], [86] and [80]).

4.    What is a political opinion is not a matter of definition but depends on the context of the case.  Account must be taken of how power is distributed and exercised in the particular society.  The political opinion ground must be oriented to reflect the reality of women’s experiences and the way in which gender is constructed in the specific geographical, historical, political and socio-cultural context of the country of origin.  In the particular context, a woman’s actual or implied assertion of her right to autonomy and the right to control her own life may be seen as a challenge to the unequal distribution of power in her society and the structures which underpin that inequality.  Such situation is properly characterised as “political” (see paras [83], [84] and [87]).

5.    In orienting the “political opinion” ground to reflect the reality of women’s experiences, care must be taken to avoid the inadvertent favouring of the articulate claimant who is able to identify and explain the political nature of her opinion, actual or imputed and where relevant, the political nature of her activities.  A woman from the same country who has undergone the same experiences but who is not articulate and who may herself be unaware of the political context or construction of her views and actions must not be disadvantaged by her lack of awareness insight or want of fluency.  While the obligation to establish the refugee claim rests on the claimant, the inquiry is a shared one.  It may become the responsibility of the decision-maker to identify that which in many gender-related cases is the unarticulated premise for the predicament of the claimant’s exposure to the risk of serious harm (see para [86]).

6.    In the specific context the appellant’s assertion of her right to life and of her right to control her life was a challenge to the collective morality, values, behaviours and codes of the two families and beyond them, of the greater community of which they are a part.  This challenge to inequality and the structures of power which support it is plainly “political” as that term is used in the Refugee Convention.  The appellant’s wish to be liberated from those structures was in this context a political opinion (see para [90]).


Treaty interpretation and guidelines

[20] Unlike several countries, including Canada, the USA, Australia, the UK and Sweden, New Zealand has not adopted Guidelines for gender-based refugee claims, preferring to apply the principles of treaty interpretation in the Vienna Convention on the Law of Treaties, 1969, particularly Article 31(1):

Article 31 General rule of interpretation
1.     A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2.     ...
3.     ...
4.     ....

See Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at paras [43] & [44] and Refugee Appeal No. 74665/03 [2005] NZAR 60; [2005] INLR 68 at paras [43] to [49] (NZRSAA).

Gender claims and power structures

[21] The RSAA has consistently emphasised the relevance and importance of power structures to gender-based claims:

Abstract definitions of “political opinion” unhelpful

[22] The Authority found unhelpful academic commentary which suggests that “political opinion” should be understood “in the broad sense, to incorporate, within substantive limitations now developing generally in the field of human rights, any opinion on any matter in which the machinery of State, government, and policy may be engaged”: Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd ed (2007, Oxford) at p 87. 

[23] This approach was altogether too abstract.  Rather the Authority (para [83]) was of the view that what is a political opinion is not a matter of definition but depends on the context of the case.  That context includes how power is distributed and exercised in the particular society.  The political opinion ground must be oriented to reflect the reality of women’s experiences and the way in which gender is constructed in the specific geographical, historical, political and socio-cultural context of the country of origin.  Thus, in the particular context, a woman’s actual or implied assertion of her right to autonomy and the right to control her own life may be seen as a challenge to the unequal distribution of power in her society and the structures which underpin that inequality.

The importance of the principle of non-discrimination

[24] It is a sad irony that the Refugee Convention, a human rights treaty based on the principle of non-discrimination, is so commonly applied to exclude the legitimate claims to refugee status by women.  Why this should be so is difficult to fathom.  The first recital of the Preamble to the Refugee Convention emphasises the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.2  Those rights can be denied to men, women and children in different ways and the impact of that denial will be determined by such factors as the person’s sex, gender, age and state of health.3  It is in inescapable that the inquiry into refugee status must take into account the claimant’s sex and issues of gender.  Economic, political and social structures in many societies discriminate against women and it is common in some countries to find that women are excluded from primary education, condemning them to a life of illiteracy and economic deprivation.  The feminisation of poverty has been identified as a major contributor to trafficking.4

The importance of mainstreaming refugee claims by women

[25] For too long women’s experiences have been seen as problematical, lying beyond the “true” scope of the Refugee Convention and requiring special interpretive “rules” or guidelines.  This view is fundamentally misconceived.  On accepted principles of treaty interpretation, sex and gender have always been at the heart of the refugee definition.  Difficulties arise only because of misinformed decision-making.  The refugee definition requires the adoption of an integrative perspective of human rights generally and this includes women’s rights.  By interpreting forms of human rights violations against women within mainstream human rights norms it is possible to avoid marginalising women’s rights in refugee law.5


* The author is Deputy-Chair of the New Zealand Refugee Status Appeals Authority and Adjunct Lecturer, Faculty of Law, University of Auckland. Any opinions expressed in this paper are the personal views of the author.

1. As can be seen, this decision is reported in the New Zealand Administrative Reports (LexisNexis).  The decision (without headnote) can also be found on the website of the New Zealand Refugee Status Appeals Authority, namely .  It is also available on the New Zealand Refugee Law website at

2. The recital reads:

Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

On accepted principles of treaty interpretation this preambular statement is an integral part of the text of the Convention and must be taken into account if the Convention is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the object and purpose of the Convention.   These principles of treaty interpretation as mandated by customary international law are now codified in Article 31 of the Vienna Convention on the Law of Treaties, 1969.

3. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another, while sex is a biological determination.  Gender is not static or innate but acquires socially and culturally constructed meaning over time: UNHCR Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, para 3.

4. Jenna Shearer Demir, “The Trafficking of Women for Sexual Exploitation: A Gender-Based and Well-Founded Fear of Persecution?” UNHCR New Issues in Refugee Research, Working Paper No. 80 (March 2003).

5. See generally Deborah E Anker, “Refugee Law, Gender, and the Human Rights Paradigm” (2002) 15 Harvard Human Rights Journal 133.