Women and Justice: Court: Federal Court of Australia

The Plaintiffs, Ms. Stanley (case available here) and Ms. Poppy, each claimed that their employer discriminated against them due to their pregnancies. Both were made redundant from the same organization while on parental leave, about two years apart. Both of the Plaintiffs’ positions were eliminated by their employer due to a reorganization of the employer’s management structure. In both cases, the Plaintiffs’ absence from work caused their employer to conclude that their positions were no longer required. In particular, when Stanley and Poppy went on parental leave, their job duties were redistributed to colleagues. This caused their employer to decide that Stanley and Poppy’s positions were redundant. In both cases, the Federal Court found that the employer would not have restructured its management in this way if the Plaintiffs had not taken maternity leave. Because the restructuring involved only those employees working at the time it occurred, the fact that the Plaintiffs were on maternity leave (and thus not present) disadvantaged them. However, the Federal Court found that Plaintiffs’ dismissals did not constitute discrimination because neither Plaintiff could show that the employer treated them any differently than it would an employee who was not pregnant or on leave in similar circumstances.

The respondent was a victim of domestic violence at the hands of her husband for a number of years in her native country, Fiji. After unsuccessfully attempting to obtain assistance from local police, she fled to Australia and applied for a protection visa. To be recognized as a refugee the respondent had to show that Fiji’s failure or unwillingness to protect her was motivated by a reason listed in the Convention Relating to the Status of Refugees 1951 (Convention), in this instance, her membership in a particular social group. Respondent argued she belonged to the following social groups: women in Fiji, women in Fiji who have left their husbands, and women who refuse to conform to the social norms of Fijian Indo society. She argued that her membership in these groups meant that Fijian police would not protect her from her husband’s assaults if she returned to Fiji. The Refugee Review Tribunal (Tribunal) found: (i) there was no evidence that the Fijian authorities withheld state protection from the respondent based on her membership in these particular social groups; (ii) Fiji has laws against domestic violence; and (iii) Fiji had a police force and judiciary to give effect to its domestic violence laws. On appeal, the Federal Magistrate’s Court overturned the Tribunal’s decision, finding that the Tribunal erred by failing to explicitly evaluate whether Fiji’s laws were sufficient to protect a person in the respondent’s position. The Full Federal Court overturned the Federal Magistrate’s Court’s decision and upheld the reasoning of the Tribunal, holding that the test for refugee protection is not satisfied where (i) the persecution is by a non-state agent (here, the respondent’s husband) for a reason that has no connection to the Convention, and (ii) the state fails to prevent the persecution due solely to its inability to implement relevant laws due to lack of resources.

A citizen of Somalia sought a protection order on the basis that she feared persecution due to her status as young, a Somali and a woman. The application asserted that she had been sentenced to death by stoning for adultery in Somalia. The Refugee Review Tribunal denied the application, finding the applicant not credible and holding that neither married nor divorced Somalia women constituted a protected group. The court held that the Tribunal erred because it did not examine whether the law against adultery was applied and administered in Somalia in a discriminatory manner.

A citizen of Fiji sought an extension of time to appeal a decision by a Federal Court Magistrate who affirmed a decision by the Refugee Review Tribunal to deny a protection visa. She alleged that she had a well-founded fear of persecution if returned to Fiji as a person who had been subjected to domestic violence by her former husband and as a member of the social group of “women at risk in Fiji.” The Tribunal found that while women had historically been at risk in Fiji, recent police forms and judgments suggested that she no longer had a reasonable fear of persecution. On appeal, she alleged that the Tribunal failed to provide her with a copy of certain country information as required by Australian law. The court found that the Tribunal was prepared to accept that the applicant was a member of a protected social group but did not accept that there was a lack of state protection. The court further found that the Tribunal adequately laid out the bases for its decision and that it did not rely on the material not provided to the applicant.

A citizen of Eritrea sought protection on the basis that she feared persecution in Eritrea, where she would either be (i) conscripted into, and subject to rape and abuse by, the army or (ii) prosecuted for failure to report for conscription. Although she presented evidence that rape, sexual abuse and impregnation by military officers was committed against draftees, including at the camp to which she would be assigned, as well as evidence showing incidents of parents killed whilst resisting the drafting of their daughters, a delegate of the Refugee Review Tribunal denied the application. The court found that the Tribunal misdirected itself by not asking whether rape, sexual abuse and impregnation by military officers was deliberate or pre-meditated conduct, exposure to which the applicant could not be expected to tolerate. The court set aside the Tribunal’s decision and the matter referred back to the Tribunal.

A married couple, both of Indian ethnic origin and citizens of Fiji, sought protection for fear of persecution on the grounds that the wife was abducted and raped because of her Indian ethic origins and because of her husband’s local political activity. The Refugee Review Tribunal did not accept that the wife was raped for reasons of her Indian ethnic origins, nor her husband’s support for the FLP. The court affirmed.

A citizen of Ghana sought protection for fear that she would be subject to arranged marriage and female genital mutilation. The Refugee Review Tribunal found the applicant to be not credible, in part because she could not identify the ethnic group that the proposed husband came from. The court found these factual conclusions satisfactory and affirmed.