Co-authored by: David Ryken, Principal, &
Jeanne Donald, Solicitor, Ryken & Associates
August 2001
This paper was prepared for, and will be presented at, the International Bar Association
2001 Conference at Cancun on 1 November 2001.







[1] For those unfamiliar with the law of refugee status, we note that the question “who is a refugee?” is governed by an international treaty, the 1951 Convention relating to the Status of Refugees as modified by the 1967 Protocol, which provides inter alia that a refugee is a person who:

[2] Thus not every individual who is at risk of serious harm is a refugee, rather he or she must be at risk because of one of the five listed Convention grounds.  This is sometimes referred to as the “Convention reason requirement”.  Of the five grounds, “membership of a particular social group” has proven the most elusive.  Analysis of the ordinary meaning of the phrase does little to advance our understanding and the Convention drafting history is of no assistance.1  It has fallen largely to decision makers and commentators to elucidate the meaning of “membership of a particular social group”.

[3] In our view, interpretation of “social group” is best undertaken in the context of a principled, conceptual understanding of the role of the Refugee Convention in international law, and in particular, its place as a remedy available to individuals who are at risk of serious human rights violations.  Refugee status entitles the holder to membership rights in a new State.

[4] The Convention refugee definition recognizes that serious harm because of an immutable (eg race) or protected (eg religion or political opinion) characteristic excludes an individual from meaningful participation in his or her own State, making membership of a new State an appropriate remedy.  Membership of a particular social group, when interpreted in context, should focus on characteristics that are immutable or protected.

[5] To establish whether a characteristic is protected, the appropriate touchstones are the anti-discrimination norms found in international human rights law.  The question of whether gender and sexual orientation are immutable is interesting and controversial but not definitive because both characteristics are protected under international human rights law as an integral part of a human being’s identity.

[6] We recommend New Zealand’s jurisprudence on the meaning of “membership of a particular social group,” and specifically claims based on gender and sexual orientation, to our international colleagues.  There is in New Zealand a rich vein of case law dealing with the social group ground and persecution based on gender and sexual orientation.

[7] The New Zealand Courts have not yet considered the scope of the social group ground, rather it is the Refugee Status Appeals Authority (RSAA) which has led the way.  The Authority is a specialist administrative tribunal independent of government.  It is mandated to decide appeals from decisions of the Refugee Status Branch of the New Zealand Immigration Service.  Each appeal is considered de novo.  All members of the Authority are lawyers.  The Authority gives its decisions after an oral hearing conducted in an essentially inquisitorial manner.  As practitioners who appear before the Authority, naturally we do not always agree with its approach, however, the Authority’s interpretation of the term “social group” is both principled and comprehensive.

[8] This paper will summarize the leading decisions of the RSAA.  The structure of the paper is as follows:

[9] Many of the Authority’s decisions are available on-line at: (known as RefNZ).  This site, set up and maintained by the Rodger Haines QC, Deputy Chairperson of the RSAA, is an invaluable source of case law, statistics and reference material.


[10] The leading decisions of the Authority dealing with the social group ground are Refugee Appeal No. 3/91 Re ZWD (20 October 1992) and Refugee Appeal No. 1312/93 Re GJ (30 August 1995).  Re ZWD addresses at length the drafting history of the social group category, the case law as of October 1992, the opinions of various commentators and the provisions of the UNHCR Handbook.  Re GJ, (discussed at greater length in the section of the paper dealing with sexual orientation), notes with approval the approach of the Canadian Supreme Court in Canada (Attorney General) v Ward [1993] 2 SCR 689; 103 DLR (4th) 1 and analyzes the individual components of the phrase “for reason of membership of a particular social group”.

[11] More recently, the Authority helpfully summarized its approach to the meaning of “membership of a social group” in Refugee Appeal No. 71427/99 (16 August 2000).  The summary set out below at paragraph 13 is drawn from that decision.  The decision makes extensive reference to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Canada (Attorney General) v Ward [1993] 2 SCR 689; and R v Immigration Appeal Tribunal; Ex Parte Shah [1999] 2 AC 629.

[12] In Refugee Appeal No. 71427/99, the Authority allowed the appeal of an Iranian woman whose fear of persecution was related to her marriage, divorce and the custody of her son.  The appellant feared serious harm at the hands of both the State and her first husband.  In relation to her first husband, a member of the Sepah Pasdaran, the appellant feared further violence and denial of access to her son.  In relation to the State, the Authority found that the legal regime governing marriage, divorce and custody discriminated against women and that any punishment that the appellant would receive for illegally removing her son from Iran would be grossly disproportionate to the offence.

[13] The Authority identified the following principles as guiding its approach to the social group ground:

[14] The Authority held (at paras 108-109 of the decision): [15] The decision then goes on to consider whether the appellant is at risk of persecution because of her membership of a particular social group (ie because she is a woman) in relation to, alternatively, the State and her first husband.  Absolutely central to the Authority’s approach is the following passage (at para 112 of the decision): The Authority found that the appellant was at risk of harm from her first husband, but that the harm feared was not for a Convention reason.  However, the failure of the State to protect her from her first husband was for a Convention reason; as was the risk she faced from the State itself.

[16] The Authority explicitly left open the question of what is the appropriate causation test in the refugee context (refer para 115 of the decision).  The authors understand that this issue will be the subject of Michigan Guidelines shortly and it is likely that the Authority will revisit the issue in the future.2


[17] Refugee Appeal No. 71427/99, discussed above, indicates the RSAA’s approach to gender-based persecution and the social group ground.  Clearly, within certain societies women may form a social group that is defined by their gender and marginalization.  This was also the approach taken in an earlier decision of the Authority, Refugee Appeal 2039/93 Re MN (12 February 1996).  Both decisions contain extensive analysis of the place of women in Iranian society.  Re MN focuses specifically on the circumstances of Arab women in Iran.

[18] Re MN is particularly interesting for two reasons.  First, it analyzes the risk faced by the appellant in both the “public” and “private” spheres, discussing the oppression of female members of the appellant’s family by male family members, and the oppression of women in Iranian society.  The notion that harm located in the private sphere is relevant to the determination of refugee status is crucial for some refugee claimants, for example, those at risk of domestic violence, forced marriage or female genital mutilation. In Re MN the Authority quotes at length from Ann Mayer, Islam and Human Rights: Tradition and Politics (2nd ed, 1995) and stresses the link between discrimination against women in both the public and private spheres and the maintenance of political power in Iran.

[19] Second, in Re MN, the Authority rejects cultural relativism, endorses the universality of international human rights norms, and dismisses the notion that Islam is irreconcilable with human rights.

[20] In Refugee Appeal No. 1867/93 Re SCDC (9 June 1994), the RSAA allowed an appeal by a Peruvian woman at risk of rape in her home country.  The appellant feared persecution by the Movimiento Revolucionario Tupac Amaru (MRTA).  She had been abducted and raped because of her refusal to join MRTA.  The Authority found that the use of rape as a weapon against women was still widespread in Peru and the appellant was at risk because of her political opinion and/or membership of a particular social group, namely women.

[21] Recourse to the social group category in refugee claims centered on the operation of the Chinese one-child family policy is also interesting.  Perhaps because the consequences of the policy are not confined to women, no appeals have succeeded on the ground that the appellant is female.  Rather, those appeals that have succeeded, have relied on the political opinion ground where the appellant has been subjected to forced abortion or forced sterilization because of her actual or imputed political opinion.  See, for example, Refugee Appeal No. 750/92 Re QYM (14 June 1994) and Refugee Appeal No. 1253/93 Re LSS (9 September 1994).

[22] Recognition of “family” as a social group can be particularly important to female claimants.  Women are often persecuted by the State authorities because of the actions of family members such as their husbands, fathers and brothers.  In New Zealand, the family has been recognized as a social group.  See, for example, Refugee Appeal No. 547/92 Re NS  (2 June 1994) and Refugee Appeal No. 71145/98 (28 May 1999).

[23] We note that gender is not only relevant in relation to female claimants.  In certain contexts, being male may be a significant risk factor for a refugee claimant.  For example, civil war situations where young men are inherently suspect (eg Sri Lanka) or claims involving recruitment to the military.

[24] New Zealand’s jurisprudence on gender-based persecution has evolved on a case-by-case basis without the assistance of the guidelines (a common tool in other jurisdictions).  It may be that this approach has been possible because of the small size of the New Zealand jurisdiction.  Gender issues have been highlighted by in-house training within the RSAA and the availability of leading decisions that deal with gender-based persecution.

[25] As practitioners, it is essential that we recognize the relevance of gender in refugee claims.  This may require us to:

[26] We note that a paper on gender and the refugee definition is being prepared by Rodger Haines of the New Zealand Refugee Status Appeals Authority as part of the UNHCR’s global consultations for the 50th anniversary of the Refugee Convention.  The paper will become available on the UNHCR’s web site, Refworld, at


[27] The leading RSAA decision dealing with sexual orientation is Refugee Appeal No. 1312/93 Re GJ (30 August 1995).  In Re GJ, the Authority allowed the appeal of a gay Iranian man.  The appellant gave evidence that gay and lesbian sexual orientation is not accepted in Iran and that since his arrival in New Zealand he had come to believe that his sexual orientation is an essential part of his identity.  Based on extensive country information, the Authority found that:

[28] Re GJ focuses on the principles of non-discrimination that underpin the Convention refugee definition and analyzes how they relate to sexual orientation.  Reference is made to articles 2 (non-discrimination), 17 (privacy) and 26 (equal protection) of the ICCPR and to the difficulties inherent in the UN Human Rights Committee decision in Toonen v Australia (CCPR/C/50/D/488/1992, 4 April 1994).  Essentially, the Authority concludes that: [29] It is interesting to contrast the country information and outcome in Re GJ with the Authority’s decision in Refugee Appeal No. 2151/94 Re RBJA (13 November 1997).  In Re RBJA, the Authority declined the appeal of a Muslim lesbian from Malaysia.  The RSAA found on the facts that: [30] The Authority accepted that lesbians were discriminated against in Malaysia.  However, after reviewing country information, the Authority concluded that although the law prohibited “unnatural offences”, there was no real chance that the appellant would be prosecuted because there was no evidence that such prosecutions took place in Malaysia.  Essentially, the appeal fell at the first hurdle.  There was no real chance of persecution so the Authority did not need to consider whether the appellant was at risk for a Convention reason.

[31] In Re RBJA, Counsel submitted that the fact that the claimant would have to keep her sexual orientation private in Malaysia constituted persecution.  The Authority rejected this submission, referring to both the country information and the characteristics of the particular appellant:

[32] For practitioners representing refugee claimants who are at risk or persecution because of their sexual orientation, we stress the following: CONCLUSION

[33] From a New Zealand perspective, the social group ground is perhaps less problematic than in other jurisdictions.  As a general rule, the greater the number of adjectives required to describe the group the less viable it is likely to be.  In Refugee Appeal No. 80/91 Re NS (20 February 1992), the Authority found that relevant social group consisted of “Muslim women living separate from their husbands in a Muslim community with no accommodation and no male family or financial support available to them and with a reputation for having transgressed the mores of their community”.  This overly semantic approach has been supplanted by the principled, conceptual approach set out in Refugee Appeal No. 71427/99.

[34] As practitioners we need to ask ourselves the fundamental question: why is my client at risk of persecution - what is it about him or her?  Is it because of something about the claimant that he or she is unable to change, or some characteristic that is recognized and protected by international human rights law.  Moreover, when articulating that the claimant is at risk because of that characteristic, it is important that we ask is she being harmed because of it, and is the State unable or unwilling to protect her because of it?

[35] Two further points, while perhaps obvious, are worth reiterating.  First, it is absolutely crucial that we are able to present our clients claims within the context of conditions in their home country.  An understanding of the political, social and cultural conditions in the claimant’s country of origin is integral to representing him or her effectively.  What distinguishes the RSAA’s leading decisions on social group, gender and sexual orientation, is their thorough, if not exhaustive, attempt to place the facts of the appellants’ claims in the political/cultural context of their home countries.  Second, it is essential that we draw on international human rights norms, particularly in relation non-discrimination, in identifying the characteristic(s) that place a claimant at risk.

[36] Finally, we note that gender and sexual orientation may be relevant when considering options other than a claim to refugee status, for example, applications for status based on New Zealand’s obligations under the Convention against Torture and humanitarian appeals against removal.

1. Because we are concerned with treaty law, the principles set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (UN doc. A/Conf.39/27) provide a useful framework in which to interpret the Refugee Convention.  The approach of the Vienna Convention is primarily textualist, but provision is made for reference to the travaux preparatoires of a treaty.

2. These guidelines are promulgated by the University of Michigan, School of Law, Program in Refugee and Asylum Law and are available at: