REPORT OF INTER- CONFERENCE ACTIVITIES OCTOBER 2000-OCTOBER 2002

Transcription

1 423 REPORT OF INTER- CONFERENCE ACTIVITIES OCTOBER 2000-OCTOBER 2002 Lory Diana Rosenberg * I OVERVIEW This report covers the activities of the IARLJ Membership of a Particular Social Group (MPSG) working party between October 2000 and October Internet citations are provided, where available, for documents and authorities referred to in the report. A series of appendices containing materials produced by the working party members and other documents referenced in the report is included as an e-file attachment. II MPSG WORKING PARTY BACKGROUND The working party on Membership of a Particular Social Group was formed by the IARLJ executive leadership in 1997, with approximately 10 IARLJ members representing various countries and the United Nations High Commissioner on Refugees named to participate in the working party. In its first season, under the leadership of Rodger Haines, Deputy Chairperson of the New Zealand Refugee Status Appeals Authority (RSAA), the working party members exchanged information concerning their countries' interpretation and application of the MPSG category and produced a paper entitled Interim Report of IARLJ Inter-Conference Working Party: Membership of a Particular Social Group (1998) ("Interim Report"). The Interim Report was presented by Rodger Haines at the IARLJ 1998 World Conference held in October 1998 in Ottawa, Canada. The working party members and other interested in participating in the working party met in an organized session * Rapporteur (Nov 2000-Oct 2002).

2 424 IARLJ CONFERENCE 2002 at the 1998 Ottawa conference and discussed gender-related claims and their relationship to MPSG and the scope of the MPSG working party. The members of the MPSG working party and other interested IARLJ members next met briefly as a group during the 2000 conference in Berne, where member Paul Tiedemann discussed his paper on Protection Against Persecution Because of "Membership of a Social Group" in German Law. In addition, the group addressed the points included in a brief paper distributed by member Lory Diana Rosenberg, which articulated many of the factors relevant to individual adjudications of refugee claims based on membership of a particular social group. See Examination of Current Country Interpretations of Membership of a Particular Social Group Under the United Nations Convention Relating to the Status of Refugees. The group in attendance agreed that MPSG continued to be a developing category under the refugee definition and noted that there had been some significant developments in the application of the category to gender related claims, particularly in the New Zealand, Australia, the UK and the US. As these applications were by no means uniform or consistent with one another in either approach or result, the group agreed that it would be valuable to proceed with the comparative work that had begun two or three years before. Following the 2000 Bern Conference, I assumed the position of rapporteur for the group. III PARTICIPATION IN 2001 UNHCR GLOBAL CONSULTATIONS In 2001, shortly after the Bern Conference, the UNHCR convened a process of Global Consultations on International Protection, designed to address and clarify certain interpretive issues arising in various provisions of the Refugee Convention. In furtherance of this objective, the UNHCR commissioned written papers and commentary focusing on membership of a particular social group, followed by an expert roundtable conducted at San Remo, Italy in August The principal paper for the MPSG roundtable was prepared by Professor T Alexander Aleinikoff and included a comprehensive section addressing the particular interpretations and applications of the MPSG category adopted by individual countries. See TA Aleinikoff, Protected Characteristics and Social Perceptions: An Analysis of the meaning of "Membership Of A Particular Social Group," available at (click Global Consultations, Second Track). As part of the process, IARLJ was invited to submit a commentary on Professor Aleinikoff's paper on MPSG, which I prepared at the request of now- President Allan Mackey. See UNHCR Global Consultations 2001: Second track

3 INTER-CONFERENCE ACTIVITIES 425 -Membership of a Particular Social Group, Rosenberg, Commentary and Critique on Membership of a Particular Social Group, at E-Appendix C. Subsequently, on May 7, 2002, the UNHCR issued Guidelines on international protection No 2: Membership of a Particular Social Group within the context of article 1A(2) of the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees. (HCR/GIP/02/02), available at (click Global Consultations, Second Track, New Guidelines). See also Gender related Persecution, by Rodger Haines, Deputy Chairperson., RSAA, available at texis/vtx/protect (click Global Consultations, Second Track), and Guidelines on International Protection No.1: 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 (HCR/GIP/02/01) available at texis/vtx/protect (click Global Consultations, Second Track, New Guidelines). IV RECONVENING OF THE WORKING PARTY In a January 2002 letter to working party members, prior to issuance of the UNHCR's new MPSG guidelines, I reported that since the Bern conference, the UNHCR had conducted a series of Global Consultations on the Refugee Convention, producing two papers specifically addressing both MPSG and gender-related asylum claims. I recommended reviewing both papers as relevant to our own comparative examination of the features of MPSG that have been identified and implemented in the adjudications made by various countries' tribunals. Specifically, I suggested that it might be useful for each working party member to (1) identify which points in the summary conclusions are consistent with the practices in the jurisprudence of that member's country and which points are not; and (2) note any points that are particularly controversial, explaining the aspects of the country's jurisprudence or the member's concerns that would preclude agreement with any particular point. Each member was encouraged to offer his or her impressions of the differences between the positions taken in the papers and the conclusions reached by the UNHCR roundtables, particular with respect to his or her country's practices. V QUESTIONNAIRE To make this endeavour more concrete, I developed a questionnaire geared to elicit responses to common questions relating to the interpretation and application of the MPSG category in each country. On April 1, 2002, I circulated the questionnaire

4 426 IARLJ CONFERENCE 2002 to the working party and the entire IARLJ membership in the hope that we might collect members' comments on the law and practice in each individual country to further our discussion of the state of MPSG practice and jurisprudence. The questionnaire circulated sought responses on The extent to which the social group ground is invoked, and if it is not routinely invoked, how relevant claims are characterized and adjudicated; The formulation, ie, the elements and factors, according to which refugee claims based on social group are construed; How overlapping Convention grounds are treated; Whether cohesion or association is required to find the existence of a social group; Whether a shared characteristic must set the group apart from others, and whether that characteristic must be innate, unchangeable or fundamental to human dignity; The extent to which a shared risk of persecution may serve as the unifying characteristic; The degree to which the group must be cognizable, ie, whether social perception of the group and its members is essential; Whether every member of the group must be at risk of persecution, and whether the persecutor must target other members of the group as well as the applicant; The way in which any nexus requirement, ie, that the fact or risk of persecution is for reasons of MPSG may be satisfied; and The weight given to evidence of cultural, social, political and legal factors in determining persecution based on this Convention ground. The questionnaire also sought responses relating to state interpretation and practices on gender-related persecution, including: Whether the state views the Convention as requiring a gender inclusive interpretation and recognizes gender-related claims; Whether the state makes a distinction between gender, as an expression of power relations between men and women, and sex, as a characteristic that is biologically determined;

5 INTER-CONFERENCE ACTIVITIES 427 Whether gender-related grounds are more readily adjudicated under the grounds of race, religion, nationality or political opinion; Whether the state observes a gender-sensitive interpretation in adjudicating all Convention grounds and what steps are taken, if any, to take into account social, cultural or religious mores, or the effect of rape trauma and other persecution-related trauma on women in adjudicating gender-related claims; Whether women, as a group, may be considered a social subset defined by innate and immutable characteristics, and if not, what additional factors are required to establish a social group; Whether protection from Convention ground based persecution inflicted by a non-state actor is recognized, and whether failure of state protection for reason of a Convention ground triggers protection from harm imposed or feared for reasons unrelated to any Convention ground; and Whether there are alternate bases prohibiting expulsion of women where the applicant does not meet the requirements of the Convention. VI RESPONSES TO QUESTIONNAIRE The responses to this voluntary survey, while anecdotal, yield interesting information. The reporting members provided information on the following countries: Australia, Austria, Canada, Finland, Norway, and Sweden. In addition, the working party had received prior information on Germany's treatment of the MPSG ground through the paper of Dr Paul Tiedemann, and members provided recent jurisprudence from New Zealand, the United Kingdom and the United States providing insight into the positions of those countries with respect to the topics covered in the questionnaire. Additional information concerning the views of other countries is contained in TA Aleinikoff, Protected Characteristics and Social Perceptions. The prepared responses received from working party members and the selected relevant decisional authority are summarized below and/or attached as appendices, or cited, respectively. I apologize in advance if I have neglected to mention the contributions of any working party member or other contributor. Australia Australia's interpretation and practice was provided in the form of relevant sections of Australia's Refugee Review Tribunal ("RTT") "Guide" forwarded by Dr Ron Witton, rwitton@uow.edu.au. (Please contact Dr Witton for

6 428 IARLJ CONFERENCE 2002 further information). See also the seminal case on which Australia's MPSG jurisprudence is based, Applicant A v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225, 142 ALR 331, and Minister for Immigration and Multicultural Affairs v Khawar, (2000) FCA Austria Florian Newald of the Federal Asylum Agency of Austria responded by fax ( , also: 60149/4310,11), indicating that the MPSG ground had been invoked very rarely, although that changes have been seen in recent cases. In a recent Sudanese asylum claim the court had ruled that the child of an incestuous relationship belonged to a particular social group. Subsequently, the court ruled that asylum seekers who are persecuted instead of their relatives are convention refugees regardless of whether they share corresponding political beliefs and whether the authorities impute such beliefs to them. In general, there appears to be reliance on definitions of the EU and Canada in the Ward case. Gender-based claims are recognized under the MPSG category, as well as political, religious, or a mixture of grounds. Until recently persecution by non-state agents was not covered; however, in its last decision, the court indicated that it is decisive that the state denies protection on a Convention ground without regard to the reason for persecution by a non-state agent. Canada An extremely comprehensive discussion of Canada's interpretation and practice on both MPSG and gender-related persecution cases is provided in the extensive and detailed responses prepared by Michael Ross of the Immigration Review Board. Mr Ross discusses the leading cases and the interpretation followed in Canadian decision making in MPSG and gender-related persecution cases. The seminal decision from which Canadian MPSG law has developed is Canada (Attorney General) v Ward (1993) 2 SCR 689. Finland Ilkka Pere replied by indicating that Finland's approach to international protection has relied primarily on a "special de-facto-humanitarian status" that covers the grounds warranting protection. Germany See discussion in Tiedemann paper. New Zealand The considerations pertinent to the MPSG category are extensively developed by Deputy Chairperson Rodger Haines of the RSAA in Refugee Appeal No 71427/99 (2000), available at Norway Responses to the questionnaire from Norway indicated that MPSG as a Convention ground has limited applicability in Norwegian practice. Under Article 15 of the Norwegian Immigration Act protection is extended to any foreign national

7 INTER-CONFERENCE ACTIVITIES 429 in considerable danger of losing his life or being made to suffer inhuman treatment. In addition, Article 8 provides that even when the requirements are not satisfied, a work or residence permit may be issued for humanitarian reasons. Gender-related persecution has not been squarely addressed. Although gender and sex are covered by the same word, discrimination is not sufficient to trigger protection, but the power relations between women and men are likely to be considered. Sweden The response from Sweden explains that the MPSG Refugee Convention ground has never been put into practice in Sweden, as Sweden is not a common law country and introduced another approach to gender-related persecution cases in This separate provision was aimed to increase protection for individuals who feared gender-related persecution. At the same time the Swedish Parliament rejected a proposal that MPSG, including all women, should be applied in this situation, as most of the EU member states did not support such a development. The response indicates that Swedish legislation also contains a provision founded on the UN Convention Against Torture, according to which an individual must not be expelled if he or she has a well-founded fear of being subject to torture or other cruel, inhuman or degrading treatment or punishment. This provision has been applied, eg, when there has been a well-founded fear of Female Genital Mutilation. In March 2001, the Migration Board of Sweden issued gender guidelines for investigation and evaluation of the needs of women for protection. United Kingdom The prevailing interpretation of the MPSG ground of persecution in the United Kingdom is contained Dr. Hugo Storey's decision in Sec'y of State for the Home Dep't and Montoya, Appeal No CC/15806/2000) (27 Apr 2001). See also Islam v Sec'y of State for the Home Dept and R v Immigration Appeal Tribunal and Sec'y of State for the Home Dept ex parte Shah, [1999] 2 WLR 1015; [1999] INLR 144. Also reprinted in 11 International Journal of Refugee Law 496, United States One of the first interpretations of the MPSG category was articulated in Matter of Acosta, 19 I&N Dec. 211, 232 (BIA 1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). See also, Matter of Kasinga, 21 I & N Dec 357 (BIA 1996), and Matter of S-A-, 22 I&N 1328 (BIA 2000). Cf Matter of R-A-, 22 I&N 906, Interim Dec 3403 (BIA 1999) (vacated and remanded for reconsideration, Attorney General 2001).

8 430 IARLJ CONFERENCE 2002 The foregoing reflects the contributions made in response to the working party's questionnaire and is by no means an exhaustive discussion or analysis of the many resources providing insight into the MPSG category that have come into being in the past several years. The responses and the recent jurisprudence confirm the direction in which MPSG analysis and practice has been moving over the past several years, while reflecting the continuing tension between expanding and restricting the category. The country-by-country discussion of MPSG in the paper prepared by Professor TA Aleinikoff for the 2001 Global Consultation should be consulted for a comprehensive overview that echoes some of the working party responses received and rounds out the picture of various country practices. VII PRESENTATION AT THE 2002 IARLJ WORLD CONFERENCE As noted above, in May 2002, the UNHCR issued new guidelines covering the MPSG category and gender-related persecution. I participated in a panel on the Global Consultations process at the 2002 IARLJ Biannual World Conference in New Zealand, where I discussed the findings of our working party and the new MPSG guidelines set forth by UNHCR. VIII CLOSING COMMENTS My resignation from the United States Board of Immigration Appeals on October necessitates my turning over the rapporteur responsibilities for the MPSG working party to another IARLJ member. In closing this report, I wish to thank those who have given me the opportunity to participate in the IARLJ while I sat on the Board of Immigration Appeals. I also thank each of the IARLJ members and others who have generously shared their thoughts and ideas with me, and contributed to the projects in which I have been involved. I continue to support the ongoing activities, collegiality, and growth of the IARLJ, and hope to remain involved with the working party and other endeavours of the organization as an associate member of the IARLJ.