Women and Justice: Keywords

Domestic Case Law

Rreshpja v. Gonzalez United States Court of Appeals for the Sixth Circuit (2005)

International law, Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, a citizen of Albania, arrived in the United States with a fraudulently obtained non-immigrant visa after a man attempted to abduct her in her home country. The Immigration and Nationalization Service initiated removal proceedings against her. During those proceedings the plaintiff requested either a grant of asylum or the withholding of removal and protection under the Convention Against Torture, arguing that she is at risk of being forced to work as a prostitute if she were to return to her home country. The immigration judge denied her application, as did the Board of Immigration Appeals. The Sixth Circuit affirmed the denial because the plaintiff was unable to show that she was a member of a particular social group that faced persecution in her home country.

Minister for Immigration and Citizenship v. SZMDS High Court of Australia (2010)

Gender-based violence in general, International law, LGBTIQ

The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK.  On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.

Appellant S395/2002 v. Minister of Immigration and Citizenship High Court of Australia (2003)

Gender-based violence in general, International law, LGBTIQ

The appellants, both homosexual male citizens of Bangladesh, arrived in Australia and applied for protection visas. To be recognized as refugees, the appellants had to show that they had a well-founded fear of being persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion. The appellants argued that they belonged to a “particular social group” that was subject to discrimination and harm in Bangladesh by virtue of their homosexuality. A delegate of the Minister for Immigration and Citizenship initially determined that because the appellants had conducted their relationship in a discreet manner in Bangladesh, they would suffer no serious harm if they returned to Bangladesh and continued to keep their relationship secret. For this reason, appellants were initially denied protection visas, and the Refugee Review Tribunal affirmed this decision. The appellant’s appealed to the Federal Court for judicial review and the primary judge dismissed the application, agreeing with the delegate’s reasoning about the discreetness of the appellants’ relationship. Appellants appealed to the Full Federal Court, which also dismissed their appeal. Appellants then appealed to the High Court, which granted them special leave to appeal. The High Court considered whether the Tribunal had erred in requiring or expecting the appellants to behave discreetly in order to avoid persecution. In a four-to-three decision, the High Court found that the Tribunal had erred because it improperly split the social group of homosexual men into two groups, discreet and non-discreet. The High Court held that the expectation that a person take reasonable steps to avoid persecutory harm, does not include the need to be discreet about sexuality, especially given that the appellants may have only been acting discreetly due to the persecution of openly homosexual men in Bangladesh. The case was referred back to the Tribunal for redetermination.

SVFB v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Female genital mutilation or female genital cutting, Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape

A citizen of Nigeria sought protection for fear that she would be subject to female genital mutilation. The Refugee Review Tribunal found that female genital mutilation constitutes serious harm amounting to persecution, but that on the facts, there was no real risk that the applicant would be subjected to female genital mutilation.

Minister for Immigration & Multicultural Affairs v. Ndege Federal Court of Australia (1999)

Domestic and intimate partner violence, Sexual violence and rape

A citizen of Tanzania sought protection on the basis that she feared persecution as a married woman in Tanzania. The applicant had been raped by her husband and argued that Tanzanian authorities were unwilling or unable to protect female citizens. The Refugee Review Tribunal denied the application because there was no evidence that the husband’s violence was related to any protected status. The court affirmed, but nevertheless remitted to the Tribunal to consider whether the husband’s violence against the applicant had been motived by a Convention related reason, such as race, religion, nationality, political opinion or of her membership in a particular social group.

In re A-T United States Executive Office for Immigration Review (EOIR) (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, International law, Sexual violence and rape

After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.

International Case Law

M.P. v. Denmark Human Rights Committee (ICCPR) (2017)

Domestic and intimate partner violence, International law

M.P. originally was from Sri Lanka, and of Tamil ethnicity and the Hindu faith.  She claimed her family had strong ties with the Liberation Tigers of Tamil Eelam (“LTTE”).  Her father was killed and several of her brothers were subjected to violence due to the connection.  To gain protection, M.P. illegally entered Switzerland where she met her former husband and father of her two children.  Her husband was violent and abusive, and was convicted of domestic violence against her for which he was sentenced to three years imprisonment.  He was to be expelled to Sri Lanka upon his release, but forced M.P. and the children to accompany him to Denmark and make false statements to seek asylum.  M.P. was afraid of her husband, who physically assaulted her and the children and threatened to kill her and take their children away if she did no support his false version of reasons for seeking asylum.  He claimed he had been detained by the military and that M.P. had been sexually abused by the Sri Lankan army.  Danish authorities denied the family’s asylum request finding that M.P.’s husband had limited associations with LTTE.  He was returned to Sri Lanka after he assaulted another person in Denmark.  After he left, M.P. felt she could safely present the true grounds for seeking asylum in Denmark.  However, her application was rejected.  The Committee considered M.P.’s claim that forcibly removing her and her children would violate Denmark’s obligations under article 7 of the Covenant because she would be detained by authorities and beaten, raped and tortured due to her family’s alleged affiliation with LTTE.  The Committee noted its jurisprudence that the State’s role is to review and evaluate facts and evidence to determine whether a risk exists, unless the evaluation was clearly arbitrary or amounted to a denial of justice.  It then noted the findings of the Danish authorities that M.P. had not raised her family’s affiliation with LTTE before the Swiss authorities when seeking residence.  Further, it noted the finding that current background material on Sri Lanka provided no basis for believing that Tamils such as M.P. with no affiliation with LTTE whose family members had not been high-profile members of LTTE would risk persecution or abuse justifying asylum merely based on ethnicity.  Regarding claims by M.P. of alleged risk of harm by her former husband in Sri Lanka, the Committee noted that M.P. merely took issue with Denmark’s conclusions that she could seek protection if needed from her husband from Sri Lankan authorities.  The Committee concluded that the information provided did not demonstrate that M.P. would face a real and personal risk of treatment contrary to article 7 if she were deported to Sri Lanka.