INTRODUCTION

THE NEW ZEALAND REFUGEE DETERMINATION PROCESS
    Overview 
    The Refugee Status Branch - Gender Composition 
    The Refugee Status Appeals Authority - Gender Composition 
    Training 

GENDER ISSUES IN THE APPEAL HEARING CONTEXT 
    Credibility Assessment 

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

CONVENTION GROUNDS 

POLITICAL OPINION 
    Interpretation
    Imputed Political Opinion 
    Actual Political Opinion 
    PRC One Child Family Cases 

PARTICULAR SOCIAL GROUP 
    Interpretation
    Women Without Protection 
    Iranian Women 
    Sexual Orientation:  Lesbians  
    The Family 
    Domestic Violence 
    Female Genital Mutilation 
 

[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⁾
 

[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.
 
Training
 
[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⁾
 

"The Authority believes the appellant. Our principal reason is that the appellant's wife gave evidence which confirmed to a very large degree what the appellant himself told us. In particular, she gave evidence that she had attended these underground meetings from time to time, though not as often as her husband. She was able to give clear and specific details of the time, place and circumstances of the meetings, and the Authority unhesitatingly accepts her as a witness of the truth. By way of contrast, the appellant presents as a rather vague, if not spiritual, individual who is not at home in describing events in terms of time, place, circumstance and related specific details. His evidence was more "impressionistic". These are not, of course, reasons for disbelieving him, but the Authority was assisted in accepting him as a credible witness by the evidence given by his wife. In this there is some irony. When the hearing began, the appellant's wife was not present and the Authority was told that it was not intended that she be called as a witness. When the Authority asked for the appellant's passport, we were told that he had inadvertently left it at home. Following a telephone call from the appellant, his wife came in to deliver the passport. The Authority took advantage of her presence to suggest that she give evidence and, through his counsel, the appellant readily agreed to this proposal. It is largely through these fortuitous events that the Authority has been able to arrive at a different conclusion to that reached by the Refugee Status Section. The appellant's wife did not give evidence at that hearing."

"Approximately four years prior to their arrival in New Zealand, Mr S and Mrs L formed a relationship. They wished to marry but feared for the consequences both to them and to any children of the marriage. It is their belief that as Mr S is the son of a Moslem Malay, he remains a Moslem under Malaysian law and is therefore governed by the Shariah Law which forbids marriage between a Moslem man and a non-Moslem woman unless the woman first converts to Islam. The relationship between the couple and every aspect of their daily personal existence would thenceforth by governed by Islam law. For his part, Mr S does not consider himself to be a Moslem and does not wish to have his personal and family life governed by the Shariah. For her part, Mrs L is adamantly opposed to converting to Islam and living the rest of her life under what she sees as the intolerable oppression imposed on women by that faith. They gave evidence that it would not be possible for Mr S to renounce Islam as the procedures prescribed in Malaysia are extremely difficult and the would-be apostate encounters hostility and bureaucratic obstruction. Mr S stated that one of his sisters has been trying unsuccessfully for the past ten years to renounce Islam and thereby change her name officially from Malay to Chinese. They say that it would not be possible for them to bypass these difficulties by living in a de facto relationship as they will still encounter difficulties in all their dealings with government departments and government-run institutions, such as schools and in addition, they will be at the mercy of groups which enforce the religious law which prohibits khalwat, or "close proximity" between unmarried couples."

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:

"It was explained by the brother in evidence that culturally this was a very sensitive matter about which a Vietnamese woman would be most reluctant to speak and it was obvious that the first appellant only described the incident with great distress.

In spite of the variations in their case, we found the appellants to be credible witnesses. They impressed as truthful, naive and somewhat fragile ladies, emotionally."

[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:

"This sort of reasoning process is, in our view, completely inadequate given the responsibilities of an interviewer and the grave consequences which were involved. In this case, the relevant authorities were dealing with a young unaccompanied Iranian woman who had been sexually molested on two recent occasions whilst being detained by Pasdars. On arrival in a strange country at the end of a ten hour flight (having been accompanied on and off the aircraft by 'officials') she is then stripped and searched. At an earlier opportunity, she gives an account of her being beaten by Pasdars in September 1991. To reject her story in totality as a fabrication because she omitted to mention at the airport her uncle's execution in 1981 and the earlier detention in July 1991, fails to address the central issue. The central issue in this particular case is whether the treatment undergone by the appellant in 1991 gave rise to a well-founded fear of persecution. To seize on various peripheral issues and inconsistencies and to use those as a ground for rejecting a claim in its entirety as a fabrication is not, in our view, an appropriate modus operandi. Furthermore, having closely questioned and observed the appellant during the course of the hearing before us, we were satisfied that her story was truthful. We find it hard to believe that an interviewing officer could have made such a sweeping adverse finding of credibility against her, particularly for the reasons stated."

"Underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination."

"The Authority should ... consciously strive both to recognise and to give proper weight to the impact of discriminatory measures on women."

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.
 
Discrimination

[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:

"While it is appropriate to acknowledge the importance of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), we do not believe that its provisions add very much to the appellant's case. First, the ICCPR itself stresses gender equality in various places: in the general, accessory prohibition of discrimination in Article 2(1) in the specific prohibitions of discrimination in Articles 4(1), 24(1) and 25, in the specific requirement of equality between spouses in Article 23(4), and in the general right of equality and prohibition of discrimination in Article 26.

Second, unlike the ICCPR, CEDAW does not contain rights which are in immediately binding form, nor are any rights made non-derogable. Indeed, CEDAW is entirely silent on the issue of derogation. Additionally, CEDAW, in many of its provisions, implies gradual or programmatic implementation of its terms and the Committee on the Elimination of Discrimination Against Women has relatively little power.

Third, there is the problem of reservations (some based on the shari'a law) which, on one view, seem to have turned CEDAW into a weak instrument: Liesbeth Lijnzaad, Reservations to UN-related Human Rights Treaties: Ratify and Ruin? (1995) 4-5, 304. In identifying the "object and purpose" of CEDAW for the purpose of assessing the validity of various reservations against Article 19 of the Vienna Convention on the Law of Treaties, Ms Lijnzaad concludes at op cit 304 that only a very limited number of provisions of CEDAW can be termed core obligations identifying the object and purpose of CEDAW:

"On the whole, there would seem to be a communis opinio on the core value of articles 2, 9, 11, 15 and 16. While article 2 presents the goals of the Convention in a nutshell, the other articles deal with discrimination in the fields of nationality, labour, equality before the law and equality in family matters. It may be suggested that these are the fields in which discrimination is most detrimental to the achievement of women's equal rights."
In the circumstances of the present case, we take the view that the ICCPR adds greater strength to the appellant's claim than CEDAW."

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 (3^rd Cir. 1993) is a cautionary tale when contrasted with the successful outcome in Fisher v INS 37 F.3d 1371 (9^th Cir. 1994). It is ironical that it was in Fatin (at 1242) that we find the suggestion (later approved in Fisher at 1380-1381) that:

"[The] concept of persecution is broad enough to include governmental measures that compel an individual to engage in conduct that is not physically painful or harmful but is abhorrent to that individuals' deepest beliefs."

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:

"She is a single woman. She is not particularly intelligent. As a single Tamil woman she would be vulnerable to the security sweeps which occur from time to time among young Tamils. She has no command of Sinhala. She would have difficulty in obtaining employment because of her lack of work skills and she would have difficulty in obtaining accommodation since her only relatives there are proposing to leave the country and other landlords are reluctant to accept Tamils as tenants.

Importantly too she will be bereft of her older, better-qualified sister and in relation to the security sweeps that she may encounter, she may experience further difficulties because of her admitted LTTE links in the past."

(c)    In Refugee Appeal No. 790/92 Re B (9 August 1994) 8, a 34 year old woman of the Sikh faith was not expected to relocate because (inter alia) she would be returning to India as a woman alone without relatives to protect her. She would be in a culture very protective of its women and inclined to regard lone women as of low character.
 
Similar conclusions were reached in two other cases involving Sikh women from the Punjab, namely, Refugee Appeal No. 755/92 Re BK and MK (19 August 1994) 5 and Refugee Appeal No. 1439/93 Re RK (6 June 1995) 14. In the latter case, the RSAA took into account the following factors in its assessment of the reasonableness element of relocation:

"The appellant has been subjected to maltreatment while in police custody. She has been detained, and restrained and beaten to the extent that she suffered injuries to her wrists and wounds to her back. She was also threatened with the degradation and trauma of being stripped naked and raped by police officers; the injuries sustained due to the police maltreatment were such that she has suffered a continuing disability; members of her family have been continuously subjected to police harassment and recently her father has been detained, her siblings and uncle are now in hiding because of fear of the police. It is more than likely that the appellant herself would need to go into hiding should she return to India- it would be unreasonable to expect the appellant to return to her country of origin and survive only by going underground."

"Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground 'that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party'; see Grahl-Madsen supra at p 220. The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen's definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real. The more general interpretation of political opinion suggested by Goodwin-Gill, supra, at p 31, ie, 'any opinion on any matter in which the machinery of state, government, and policy may be engaged', reflects more care in embracing situations of this kind.

Two refinements must be added to the definition of this category. First, the political opinion and issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.

Second, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution."

"The appellant is as opposed to the oppression of women in Iranian society as she is to the oppression of women within her own family or tribal group, and little point would be served by traversing her evidence in that regard. It is sufficient to note that the appellant is an intelligent and perceptive woman whose experiences and mature years have led her to an awareness of the value of human rights (particularly the principle of non-discrimination), the inherent worth of the individual, and the pressing need in her own life to be free of the dictates of others and to be able to make her own choices on fundamental aspects of existence such as marriage, child rearing, education, employment and personal expression, including her dress, appearance and relationships with others. We have already mentioned the process of self-awareness described in her evidence which led her to question the basic assumptions underlying the relationship between male and female in both her family setting and within in Iranian society at large."

"Herein lies the significance of the interpretative approach to the Refugee Convention discussed at length earlier in this decision and which recognises that the grounds of race, religion, nationality and political opinion focus on the claimant's civil and political rights. The Acosta ejusdem generis interpretation of "particular social group" firmly weds the social group category to the principle of the avoidance of civil and political discrimination. In this way, the potential breadth of the social group category is purposefully restricted to claimants who can establish a nexus between who they are or what they believe and the risk of serious harm: Ward 738-739; Hathaway, The Law of Refugee Status (1989) 137. For the nexus criterion to be satisfied, there must be an internal defining characteristic shared by members of the particular social group. In the Acosta formulation, this occurs when the members of the group share a characteristic that is beyond their power to change, or when the shared characteristic is so fundamental to their identity or conscience that it ought not be required to be changed. In the very similar Ward formulation, the nexus criterion is satisfied where there is a shared defining characteristic that is either innate or unchangeable, or if voluntary association is involved, where that Association is for reasons so fundamental to the human dignity of members of the group that they should not be forced to foresake the association.

In this way, recognition is given to the principle that refugee law ought to concern itself with actions which deny human dignity in any key way: Hathaway op cit 108 approved in Ward at 733.

On this interpretation, the issue of sexual orientation presents little difficulty. As we have earlier remarked, sexual orientation is a characteristic which is either innate or unchangeable or so fundamental to identity or to human dignity that the individual should not be forced to foresake or change the characteristic.

Sexual orientation can, therefore, in an appropriate fact situation, be accepted as a basis for finding a social group for the purposes of the Refugee Convention."

(b)    There is a real issue as to whether it is appropriate for refugee determination to focus on political opinion to the exclusion of the social group element when gender issues are raised (p 50):

"An approach to refugee determination which unjustifiably favours the political opinion ground to the exclusion of the social group ground will tend to reinforce the male gender bias often complained of by female asylum-seekers, and inhibit the development of a refugee jurisprudence which properly recognises and accommodates gender issues within the legitimate bounds of the Refugee Convention."

[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:

"... women who, as a result of their deeply held values, beliefs, and convictions, reject or oppose the way in which they are treated in Iran, and the attendant power structure which perpetuates and reinforces the so-called 'Islamist' justification for this state of affairs."

"Recognized that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they life may be considered as a 'particular social group' within the meaning of Article 1A(2) of the 1951 United Nations Refugee Convention."

"... Moslem women living separate from their husbands in a Moslem community with no accommodation and no male family or financial support available to them and with a reputation for having transgressed the mores of their community."

"... women who, as a result of their deeply held values, beliefs, and convictions, reject or oppose the way in which they are treated in Iran, and the attendant power structure which perpetuates and reinforces the so-called "Islamist" justification for this state of affairs."

"... homosexuals in Iran are a cognisable social group united by a shared internal characteristic, namely, their sexual orientation. We also find that homosexuality is either an innate or unchangeable characteristic, or a characteristic so fundamental to identity or human dignity that it ought not be required to be changed."

"We find that the family is entitled to stand alone under the Convention as a particular social group and that the source of the persecution need only lie in membership of the family group for the protection of the Convention to be invoked.

Accordingly, we find that the appellant and her children fear persecution for the Convention reason of membership of a particular social group."

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:
 
 

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:
 

"... is unable or ... is unwilling to avail himself of the protection of that country".

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.