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International Journal of Refugee Law
- 2011
Dissecting discrimination in refugee
law: an analysis of its meaning and its cumulative
effect
Author: Rebecca Dowd
Subject:
Immigration.
Other related subjects: Human rights. International
law. Legal systems
BA,
LLB/LLP (Hons), Flinders University; LLM in
International Human Rights Law (Distinction), University
of Essex.
I.J.R.L. 2011, 23(1), 28-53
*I.J.R.L. 28
Abstract
The
concept of ‘discrimination’ has several meanings and
usages in refugee law. It goes to the very core of the
refugee law regime, yet it does not have a clear
definition. This article seeks to explore and critique
the ways in which ‘discrimination’ is interpreted and
applied by decision makers in Australia, Canada, New
Zealand, the United Kingdom and the United States. It is
primarily concerned with ‘cumulative grounds
discrimination’: namely, the understanding in refugee
law that the cumulative effect of various discriminatory
measures can amount to persecution, even where each
incident of discrimination alone would not suffice. It
critically analyzes the approaches of decision makers in
such cases, in light of various statements of principle
made by UNHCR. This article raises a number of
questions, issues and inconsistencies that merit further
research and consideration. It argues that decision
makers should adopt a broader approach in discrimination
cases: they should consider the impact of discrimination
on the meaningful and effective enjoyment of rights, as
well as on the individual and his or her ability to live
a dignified life. The article concludes that adopting a
broader approach in discrimination cases would be more
consistent with fundamental principles of international
human rights and refugee law: equality,
non-discrimination and the inherent dignity of all human
beings.
1.
Introduction
According to a United Nations High Commissioner for
Refugees (UNHCR) submission before the UK Asylum and
Immigration Tribunal (UKAIT)
in 1996, ‘discriminatory measures leading to
consequences of a substantially prejudicial nature for
the person concerned may amount to persecution. This may
take a variety of forms and no useful purpose would be
served by trying to exhaustively describe them’.1
Similarly, UNHCR states in its Handbook on Procedures
and Criteria for Determining Refugee Status (UNHCR
Handbook) that ‘it is not possible to lay down
*I.J.R.L. 29 a general
rule as to what cumulative reasons can give rise to a
valid claim to refugee status’.2
The
submission before the UKAIT, however, goes on to
acknowledge that ascertaining when discrimination can
amount to persecution is a ‘sometimes difficult
assessment’. This article argues that ‘sometimes’ is an
understatement. What is discrimination? What are
consequences of a substantially prejudicial nature?
What, fundamentally, is persecution? This article does
not attempt to ‘lay down a general rule’, nor to
‘exhaustively describe’ when discriminatory measures can
constitute persecution: it agrees that this would prove
impossible and of little value. It will, however,
dissect the use of the term ‘discrimination’ in refugee
law, analyse the approaches of decision makers in
discrimination cases and explore why this assessment is
so difficult.
The
main focus of this article is cumulative grounds
discrimination: namely, the understanding in refugee law
that the cumulative effect of various discriminatory
measures can amount to persecution, even where each
incident of discrimination alone would not suffice. This
is widely accepted, yet decision makers are inconsistent
in its application. Significantly, two concepts that are
central to this idea are not concretely defined:
persecution and discrimination. The first section of
this article will examine these, to argue that, whilst
persecution ought to remain a flexible concept,
discrimination needs to be better defined and
understood. In particular, this section will examine,
critique and compare the ways in which the term
‘discrimination’ is used both in refugee law and
international human rights law. The second section will
narrow the focus to ‘cumulative grounds discrimination’
and explore the meaning of this term. It will trace
relevant statements of principle made by UNHCR -
particularly several influential paragraphs of its
Handbook - and briefly confirm states' acceptance of
this principle.
The
third section will critically assess the way in which
cumulative discrimination cases are approached by
decision makers in Australia, Canada, New Zealand, the
United Kingdom (UK) and the United States (US). It will
tackle a number of issues, starting with the fact that
not all decision makers undertake a cumulative analysis.
It will review the reliance placed by decision makers on
the UNHCR Handbook and their restrictive interpretation
of the rights contained therein, particularly in cases
involving economic, social and cultural rights. The
fourth section comes in response to the overarching
criticism made in the preceding section, that some
decision makers adopt an overly restrictive approach
when drawing the line *I.J.R.L.
30 between discrimination and persecution. It
will argue that adopting a broader approach would be
more consistent with what lies at the very core of
international human rights law: recognition of the
inherent dignity and equal rights of every individual.
2. Key
concepts: persecution and discrimination
2.1
Persecution
Persecution has no legal definition. Article 1A(2) of
the Refugee Convention defines a refugee as a person
who, ‘owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside
the country of his nationality and is unable or, owing
to such fear, is unwilling to avail himself of the
protection of that country …’.3 However,
neither the Convention nor its
travaux préparatoires
offers any guidance as to the meaning of the term ‘being
persecuted’. UNHCR confirms that ‘[t]here is no
universally accepted definition of “persecution”, and
various attempts to formulate such a definition have met
with little success’.4 There is general
agreement that treatment must attain a certain degree of
severity to constitute persecution, but there are
different approaches as to how this should be measured.
The
dominant - though not universally accepted - approach to
the interpretation of persecution is the human rights
approach.5 It is argued that, logically, the
reference to the Universal Declaration of Human Rights
in the preamble to the Refugee Convention implies that
the drafters wanted the refugee definition to evolve in
tandem with human rights principles;6 that
‘counteracting discrimination … was a fundamental
purpose of the Convention’.7 There are
differing opinions, however, as to which human rights
ought to be considered in this approach, and what type
of violations will amount to persecution. The UNHCR
Handbook is quite general in this respect: ‘… it may be
inferred that a threat to life or freedom on account of
race, religion, nationality, political opinion or
membership of a particular social group is always
persecution. Other serious violations of human rights -
for the same reasons - would also constitute
persecution’.8
*I.J.R.L.
31
Without undertaking a comprehensive analysis, it is
useful to compare the approaches of several States to
defining persecution. In the US, persecution is
understood as ‘the infliction of suffering or harm upon
those who differ (in race, religion or political
opinion) in a way regarded as offensive'.9
New Zealand adopts Hathaway's approach that refugee law
ought to concern itself with actions which deny human
dignity in any key way and that the sustained or
systemic denial of core human rights is the appropriate
standard’.10 This has also been followed by
the Supreme Court of Canada.11 However,
whilst there might be a need for a sustained and
systemic denial of rights where discrimination and
cumulative grounds are concerned, all jurisdictions
recognise that persecution itself can also constitute a
single act.
In
Australia, persecution is defined in the Migration Act.12
Pursuant to section 91R(1), persecution must involve
‘serious harm’ to the applicant and ‘systemic and
discriminatory conduct’. The concept of serious harm is
elaborated in section 91R(2) to include a threat to life
or liberty, significant physical harassment or
ill-treatment, or significant economic hardship or
denial of access to basic services or denial of capacity
to earn a livelihood, where such hardship or denial
threatens the applicant's capacity to subsist. Courts
have made clear that whilst this list of instances of
‘serious harm’ ‘imposes a significant constraint upon
what may amount to persecution’,13 it is
non-exhaustive and does not constitute a definition.14
2.2
Discrimination
Ideally, this section would provide a concise definition
of ‘discrimination’. Unfortunately, and somewhat
surprisingly, this is rarely discussed as a concept in
itself in refugee law. Discrimination is frequently
referred to, and goes to the very foundation of the
refugee law regime. However, this section will reveal
that its precise meaning is often blurred, especially in
light of the meaning of discrimination in international
human rights law. This section will firstly explore and
assess the way in which the term ‘discrimination’ is
used in the context of refugee law. It will then briefly
examine its meaning in international human rights law,
before analysing the overlap between the two.
*I.J.R.L.
32
2.2.1
Discrimination in refugee law
Discrimination lies at the core of all persecution. As
explained by the Canadian Supreme Court in
Ward,
‘[u]nderlying the Convention is the international
community's commitment to the assurance of basic human
rights without discrimination’.15 Lord
Hoffmann explained in
Islam that
in his opinion, ‘the concept of discrimination in
matters affecting fundamental rights and freedoms is
central to an understanding of the Convention. It is not
concerned with all cases of persecution, even if they
involve denials of human rights, but with persecution
which is based on discrimination’.16
The
first way in which discrimination can be understood,
therefore, is as the link between an incident/treatment
and a Convention ground. An Australian High Court
Justice has explained that ordinarily, persecution ‘will
be manifested by a series of discriminatory acts
directed at members of a race, religion, nationality or
particular social group or at those who hold certain
political opinions in a way that shows that, as a class,
they are being selectively harassed’.17 He
explained that treatment is not persecutory if it is
meted out to all and is not discriminatory.18
In this sense, therefore, all treatment must be
discriminatory, to be relevant to a refugee claim.
It
is a generally accepted principle of refugee law,
however, that ‘mere’ discrimination will not amount to
persecution. This brings us to the second way in which
‘discrimination’ is used in refugee law: as ‘a word
designed to connote less serious forms of harm’.19
It is often used by decision makers to describe all
treatment and incidents that fall short of persecution.
It is sometimes used in the jurisprudence alongside - or
even interchangeably with - ‘harassment’, depriving it
of independent meaning. In a commonly cited Canadian
case, for example, the Federal Court said that ‘the
dividing line between persecution and
discrimination or
harassment is difficult to establish …’.20
Walker, in a paper on sexuality and refugee status in
Australia, describes ‘mere’ discrimination and
persecution as sitting at opposite sides of a spectrum:
‘It is clear that there is no “bright line” test in
refugee law to distinguish “mere” discrimination from
persecution. Rather, there is a spectrum of activity
directed at individuals on the basis of a Convention
ground, with threats to life and liberty at one end and
“mere” discrimination at the other. Somewhere, perhaps
in the middle, is a point we can call “severe” or
*I.J.R.L. 33 “serious”
discrimination, which probably marks the threshold at
which persecution begins. The cumulative effects of
discrete acts of discrimination must be considered in
determining whether this point has been reached in a
given case’.21
Decision makers in all states under consideration in
this article draw a similar distinction between
discrimination and persecution. New Zealand's
jurisprudence confirms that ‘discrimination
per se is
not enough to establish a case for refugee status’: it
can amount to persecution ‘if of sufficient severity and
of a sustained or systemic nature’.22 US
courts make clear that ‘persecution is an extreme
concept that does not include every sort of treatment
our society regards as offensive’.23 A number
of cases from the UK reiterate that there is a ‘high
threshold which it is necessary to reach before
discrimination, although unpleasant for those who are
the subject of it, will be construed as amounting to
persecution’.24 In a 2002 Canadian Federal
Court case, Justice Marceau explained that ‘to be
characterised as persecution, incidents of
discrimination or harassment must be serious or
systematic …’.25 Similarly, Australia's
Migration Act requires ‘serious harm’ before treatment
will be deemed persecutory.26 Decision
makers, therefore, strive to identify the point at which
‘mere’ discrimination becomes persecution, whilst
recognizing that ‘[t]he difference between persecution
and discrimination is one of degree, which makes a hard
and fast line difficult to draw’.27
In
an attempt to rationalise the distinction that is drawn
between discrimination and persecution, it can be
inferred that refugee decision makers look for tangible
harm to the individual in order to make a finding of
persecution. In words of an Australian High Court
Justice, ‘[p]ersecution involves discrimination
that results in harm
to an individual. But not all discrimination amounts to
persecution. With the express or tacit approval of the
government, for example, some employers may refuse to
employ persons on grounds of race, religion or
nationality. But discriminatory though such conduct may
be, it may not amount to persecution. Other employment
may be readily available. The Convention protects
persons from persecution, not discrimination’.28
*I.J.R.L.
34
Lord Millett of the UK House of Lords has similarly
explained that ‘[t]he denial of human rights … is not
the same as persecution, which involves the infliction
of serious harm. The 1951 Convention was concerned to
afford refuge to the victims of certain kinds of
discriminatory persecution, but it was not directed to
prohibit discrimination as such nor to grant refuge to
the victims of discrimination’.29 Whilst this
article agrees that not all victims of discrimination
should be recognized as refugees, there are still
problems with the inconsistent ways in which decision
makers use and understand the notion of ‘discrimination’
in refugee law. It should be noted, however, that this
term is not always used in the same context nor intended
to convey the same meaning. In particular, it does not
necessarily refer to discrimination which is unlawful
because it interferes with a legally protected right.
2.2.2
The use of the term ‘discrimination’ in refugee law
The
word ‘discrimination’ is used loosely by some decision
makers as a catch-all term to describe all forms of harm
deemed insufficiently serious to amount to persecution.
This can be criticised on several grounds, two of which
will be examined here. The first is the way in which
some decision makers use this vague, all-encompassing
notion to dismiss asylum claims, without affording
proper consideration to each of their elements. This
article agrees with the reasoning of Lord Hope of
Craighead in
Islam, that ‘persecution is not the same
thing as discrimination. Discrimination involves the
making of unfair or unjust distinctions to the
disadvantage of one group or class of people as compared
with others. It may lead to persecution or it may not.
And persons may be persecuted who have not been
discriminated against. If so, they are simply persons
who are being persecuted’.30
The
loose usage of the term ‘discrimination’ and the failure
to recognize this last point can pose a particular issue
in cases involving a range of discriminatory measures,
coupled with physical harm. According to Musalo, ‘[a]
survey of [religious discrimination] cases reveals that
tribunals often wrongly characterise physical harms as
“mere discrimination” or “harassment”’.31 She
considered three cases (from Canada, the UK and the US)
where adjudicators concluded that physical assaults and
beatings were said to amount to discrimination not
persecution. Whilst a higher tribunal in each case
corrected the error, it is still significant that the
error was made.
The
US case, for example, involved a Jewish woman from the
Ukraine. The BIA characterised the treatment she had
faced as mere discrimination, *I.J.R.L.
35 not amounting to persecution. She had been
limited in her educational and employment opportunities,
had been fired, had received death threats and on one
occasion was tied up with a noose placed around her
neck, resulting in brain concussion and hospitalisation.
The Court of Appeals reversed this finding, observing
that a specific death threat coupled with evidence of
political and social turmoil is enough to establish
prima facie
eligibility for asylum, and her case involved more than
this.32
A
number of other cases legitimise Musalo's concern. In a
Canadian case,33 for example, a Roma man
complained of several violent and threatening incidents
by skinheads, on one occasion causing him to have
several toes amputated. He was also allegedly beaten by
police, one of whom threatened to kill his family if he
reported him. The Roma man claimed that he and his
family suffered numerous other non-violent insults and
humiliations. The Federal Court upheld the CRDD's
finding that ‘the incidents recounted in support of
their claim to refugee status,
while constituting
discrimination, did not amount to
persecution whether considered singularly or
cumulatively’.34 The problem in these cases
is not necessarily the final outcome: it is the fact
that violent acts, which could be persecutory in and of
themselves, are thrown into the mix by decision makers
with other less serious forms of harm. The person's
situation is then dismissed in its entirety using the
broad notion of ‘discrimination’.
A
second criticism is the way in which discrimination is
conceptualised as something of minimal importance. Why
should discrimination be relegated to the lower side of
Walker's spectrum, for example, when ‘serious’ human
rights violations, such as threats to life and liberty,
sit confidently at the higher end? Of course, as this
article has already made clear, not all discrimination
will amount to persecution for the purposes of the 1951
Convention. However, the very notion of ‘mere’
discrimination can arguably downplay the significance
that international human rights law places on
discrimination. Whilst it has not been universally
accepted, the Inter-American Court of Human Rights has
even asserted that non-discrimination is a
jus cogens
norm of international law.35
The
idea that there are degrees of severity when it comes to
discrimination is unique to refugee law. Perhaps the
issue is simply one of terminology. Perhaps, however,
this unique understanding of discrimination also
influences decision makers when they are faced with
cases that require careful consideration of
discrimination as it is understood in international
human rights law. To answer this, to legitimately
evaluate the approaches *I.J.R.L.
36 of decision makers and to tackle the complex
issue of how discrimination
should be
understood in refugee law, it is necessary to briefly
consider the concept of discrimination from an
international human rights law perspective.
2.2.3
Discrimination in international human rights law
The
principles of equality and non-discrimination go to the
very core of the human rights regime. The purposes of
the United Nations, as set out in Article 1 of the
Charter, include respect for equal rights, and promoting
and encouraging respect for human rights and fundamental
freedoms for all without distinction. Article 1 of the
Universal Declaration of Human Rights (UDHR) proclaims
that all human beings are born free and equal in dignity
and rights, and Article 2 provides that ‘everyone is
entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind …’.36
The International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) state that everyone
is entitled to all the rights and freedoms set forth
therein, without distinction of any kind.37
The prohibition on racial and gender discrimination is
specifically addressed in the Convention on the
Elimination of All Forms of Racial Discrimination (ICERD)
and the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) respectively. In
fact, the principle of non-discrimination is a feature
of all core human rights instruments.
In
relation to economic, social and cultural rights, the
Committee on Economic Social and Cultural Rights (ESCR
Committee) stated in a 2009 General Comment that
‘[n]on-discrimination and equality are fundamental
components of international human rights law and
essential to the exercise and enjoyment of economic
social and cultural rights’.38 It defined
discrimination as ‘any distinction, exclusion,
restriction or preference or other differential
treatment that is directly or indirectly based on the
prohibited grounds of discrimination and which has the
intention or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing,
of Covenant rights. Discrimination also includes
incitement to discriminate and harassment’.39
*I.J.R.L.
37
The Human Rights Committee, in relation to civil and
political rights, similarly observes that
‘[n]on-discrimination, together with equality before the
law and equal protection of the law without any
discrimination, constitutes a basic and general
principle relating to the protection of human rights’.40
It has explained that discrimination should be
understood as ‘any distinction, exclusion, restriction
or preference which is based on any ground such as race,
colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or
other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or
exercise by all persons, on an equal footing, of all
rights and freedoms’.41
This brief analysis demonstrates that international
human rights law is concerned with the equal
recognition, enjoyment and exercise of human rights.
Whilst non-discrimination provisions can only be invoked
in conjunction with the violation of another human right
- with the limited exception of ICCPR Article 2642
- this does not undermine the significance attached to
the principle of non-discrimination itself. The Vienna
Declaration and Programme of Action, for example,
reaffirmed the obligation of states ‘to ensure that
persons belonging to minorities may exercise
fully and effectively
all human rights and fundamental freedoms without any
discrimination and in full equality before the law…’.43
Two main points should be taken from this discussion.
Firstly, non-discrimination is a fundamental principle
of international human rights law. Secondly, this body
of law is concerned not only with whether discrimination
leads to a particularly serious violation of human
rights: it also views discrimination in the effective
enjoyment of human rights as a serious violation in
itself.
2.2.4
The overlap between discrimination in human rights law
and refugee law
This section has thus far revealed that refugee decision
makers use the term ‘discrimination’ in more than one
sense: as being at the core of the entire refugee law
regime, and as an all-encompassing term for less serious
forms of harm. Another way in which it is used is in the
international human rights law sense, as discussed
above.
New Zealand
jurisprudence provides several examples of how
discrimination in international human rights law can
feed into the interpretation of persecution. The Refugee
Status Appeals Authority (RSAA) has asserted
*I.J.R.L. 38 in several
cases that ‘decision makers should consciously strive
both to recognize and to give proper weight to the
impact of discriminatory measures on women’.44
The ‘discriminatory measures’ to which it was referring,
meant measures that discriminated against women in their
enjoyment of rights in the ICCPR and CEDAW. In one case,
concerning a Malaysian couple, the RSAA granted refugee
status based on the way in which discriminatory
treatment would adversely impact upon several ICCPR
rights: Article 18, the right to freedom of thought,
conscience, religion and belief; Article 17, the right
to privacy and family; and Article 23, the right to
marriage and family.45 In these cases,
therefore, the RSAA used ‘discrimination’ not to refer
to less serious forms of harm, but to identify
violations of human rights law.
In
another case, concerning a woman from Iran, the RSAA
commented that the ‘state-legislated relegation of women
to a substantially inferior status is in breach of
fundamental human rights law which prohibits
discrimination on the basis of gender’.46 It
referred particularly to Articles 2, 3 and 26 of the
ICCPR, and Articles 2, 3, 15 and 16 of CEDAW, all of
which relate to equality and non-discrimination. Whilst
the RSAA also took personal harm from the applicant's
husband into account, it explained that ‘enforcement of
gender-based norms against women as a group in Iran is
of a nature which permits a finding of persecution in
the sense of a sustained or systemic violation of basic
human rights’.47
The
human rights law principle of discrimination, however,
is not always properly understood nor applied by refugee
decision makers. A specific example relates to the
prohibition on racial discrimination, which is a
peremptory norm of international law.48
Discrimination on grounds of race should not be
dismissed as a ‘less serious form of harm’ or ‘mere
discrimination’. Yet the US 9th Circuit Supreme Court,
for example, has said on more than one occasion that
‘[p]ersecution is an extreme concept, which ordinarily
does not include “[d]iscrimination on the basis of race
or religion, as morally reprehensible as it may be”’.49
The
UNHCR Handbook however, notes that ‘[d]iscrimination on
racial grounds will frequently amount to persecution in
the sense of the 1951 Convention. This will be the case
if, as a result of racial discrimination, a person's
human dignity is affected to such an extent as to be
incompatible *I.J.R.L. 39
with the most elementary and inalienable human rights,
or where the disregard of racial barriers is subject to
serious consequences’.50 Arguably, racial
discrimination
itself can be a sufficiently serious human
rights violation to constitute persecution. UNHCR also
states, for example, that ‘[d]iscrimination for reasons
of race has found world-wide condemnation as one of the
most striking violations of human rights’.51
Even without taking it this far, it is wholly
inconsistent with international human rights law for
decision makers to start from the premise that racial
discrimination is a ‘less serious’ form of harm.
3. The
cumulative effect of discrimination
Cumulative discrimination refers to the situation in
which a person faces a number of different
discriminatory measures, such as in education, health
care, employment and/or housing. Whilst the measures are
not always related to economic, social and cultural
(ESC) rights, there are usually at least some ESC
elements. This section will critically examine the main
statements of principle made by UNHCR and briefly set
out some affirmations of these statements by states.
3.1
UNHCR: the principles
UNHCR is the agency entrusted with supervising the
application of the Refugee Convention.52 It
has confirmed on a number of occasions that the
cumulative effect of discrimination can amount to
persecution. The main such source is the UNHCR Handbook,
which, whist not binding upon states, is often referred
to by courts as authoritative. The US Supreme Court, for
example, has said that the Handbook provides
‘significant guidance’53 and is ‘a useful
tool’54 in construing its obligations under
the Convention and Protocol. The Australian High Court
has similarly said that ‘due weight’ should be given to
UNHCR publications, including the Handbook, and that it
‘will often derive great assistance by having access to
such materials’.55 The Canadian Federal Court
has referred to paragraph 55, in particular, as
‘instructive’,56 and has also commented
*I.J.R.L. 40 that the
Handbook ‘provides guidance for the consideration of
claims of persecution based on the cumulative effects of
discrimination’.57
It
is now over thirty years since the Handbook was
published. As the International Court of Justice said in
its 1971 Namibia advisory opinion, ‘[i]nterpretation
cannot remain unaffected by the subsequent development
of the law … [A]n international instrument has to be
interpreted and applied within the framework of the
entire legal system prevailing at the time of
interpretation’.58 The Handbook should
therefore not be read as static, but should evolve in
parallel with international legal developments. The
relevant paragraphs, for the purposes of this article,
are paragraphs 53 through 55. They provide as follows:
(b)
Persecution
…
53.
In addition, an applicant may have been subjected to
various measures not in themselves amounting to
persecution (e.g. discrimination in different forms), in
some cases combined with other adverse factors (e.g.
general atmosphere of insecurity in the country of
origin). In such situations, the various elements
involved may, if taken together, produce an effect on
the mind of the applicant that can reasonably justify a
claim to well-founded fear of persecution on ‘cumulative
grounds’. Needless to say, it is not possible to lay
down a general rule as to what cumulative reasons can
give rise to a valid claim to refugee status. This will
necessarily depend on all the circumstances, including
the particular geographical, historical and ethnological
context.
(c)
Discrimination
54.
Differences in the treatment of various groups do indeed
exist to a greater of lesser extent in many societies.
Persons who receive less favourable treatment as a
result of such differences are not necessarily victims
of persecution. It is only in certain circumstances that
discrimination will amount to persecution. This would be
so if measures of discrimination lead to consequences of
a substantially prejudicial nature for the person
concerned, e.g. serious restrictions on his right to
earn his livelihood, his right to practice his religion,
or his access to normally available educational
facilities.
55.
Where measures of discrimination are, in themselves, not
of a serious character, they may nevertheless give rise
to a reasonable fear of persecution if they produce, in
the mind of the person concerned, a feeling of
apprehension and insecurity as regards his future
existence. Whether or not such measures of
discrimination in themselves amount to persecution must
be determined in light of all the
*I.J.R.L. 41 circumstances. A claim to fear of
persecution will of course be stronger where a person
has been victim of a number of discriminatory measures
of this type and where there is thus a cumulative
element involved.
3.1.1
Analysis of Handbook provisions
The
wording of these provisions gives rise to a number of
questions and uncertainties. According to paragraph 54,
discrimination will only amount to persecution if it
would lead to ‘consequences of a substantially
prejudicial nature’. The consequences mentioned -
serious restrictions on the right to earn a livelihood,
the right to practice one's religion or to access
normally available educational facilities - comprise a
non-exhaustive list of examples. No other guidance is
given as to the meaning of ‘substantially prejudicial’.
However, according to paragraph 55, less serious
measures of discrimination may also amount to
persecution if they produce ‘a feeling of apprehension
and insecurity as regards his future existence’ in the
mind of the applicant. What does it mean for a person to
have a ‘feeling of apprehension and insecurity’? Is
‘future existence’ to be taken literally in terms of the
ability to survive, or does this imply a certain quality
of existence? And, what are measures ‘not of a serious
character’? On the one hand, it is not necessary to
interpret the wording used in the Handbook too
meticulously as it is not a legal text. On the other
hand, there is a distinct lack of other relevant
guidance and courts place considerable weight on these
provisions. It would, therefore, be useful to clarify
their meaning.
3.1.2
Reaffirmation of principles
UNHCR has reaffirmed these principles on a number of
occasions, yet without providing much greater clarity.
In 2001, for example, UNHCR developed guidance on the
interpretation of Article 1 of the Refugee Convention.59
This confirmed that ‘[w]hile it is generally agreed that
“mere” discrimination may not, in the normal course,
amount to persecution in and of itself (though
particularly egregious forms undoubtedly will be so
considered), a persistent pattern of consistent
discrimination will usually, on cumulative grounds,
amount to persecution and warrant international
protection’.60 The use of language like ‘in
the normal course’ and ‘usually’ reinforces just how
difficult it is to articulate clear principles in such
cases.
*I.J.R.L.
42
In its 2002 Gender Guidelines, UNHCR similarly confirmed
that ‘a pattern of discrimination or less favourable
treatment could, on cumulative grounds, amount to
persecution and warrant international protection. It
would, for instance, amount to persecution if measures
of discrimination lead to consequences of a
substantially prejudicial nature for the person
concerned, e.g. serious restrictions on the right to
earn one's livelihood, the right to practice one's
religion, or access to available educational
facilities’.61
3.2
The response of states
This general principle, that the cumulative effect of
discrimination can constitute persecution, has been
accepted by all states under consideration in this
article: Canada, the US, the UK, Australia and New
Zealand. In Canada, courts have recognized, since at
least 1991, that ‘the cumulative effects of
discrimination and harassment may fulfil the
definitional requirements of persecution in some
circumstances, even where each incident of
discrimination or harassment taken on its own would
not’.62 US courts have long recognized that
‘while a single incident, in some instances may not rise
to the level of persecution, the cumulative effect of
several incidents may constitute persecution’.63
In the UK, the AIT has deemed it ‘an axiom of refugee
law that hardships and discriminations must be looked at
cumulatively’ as, taken together, they could amount to
persecution.64
In
2008, the Australian Federal Court explained clearly, in
relation to the Migration Act, that ‘it is possible that
individual instances of discrimination will not of
themselves amount to “serious harm”, but when considered
cumulatively satisfy the requirements of s91R’.65
New Zealand has recognized on a number of occasions that
‘various threats to human rights, in their cumulative
effect, can deny human dignity in key ways and should
properly be recognized as persecution for purposes of
the Convention. The need to recognize the cumulative
effect of threats to human rights is particularly
important in the context of refugee claims based on
discrimination’.66 *I.J.R.L.
43 Against this backdrop, the following section
will consider the way in which decision makers across
the jurisdictions apply this vague, ‘notoriously
difficult’ principle of cumulative discrimination.
4.
Critical analysis of current approaches
This section argues that the tests used by decision
makers to assess whether the cumulative effect of ‘less
serious’ discriminatory measures amounts to persecution
are often applied too stringently, wrongly, or not at
all.
4.1 Failure to undertake a cumulative analysis
Whilst all jurisdictions under consideration acknowledge
that the cumulative effect of discrimination can amount
to persecution, a number of decision makers - usually on
lower tribunals - neglect to undertake a cumulative
analysis and assess incidents of discrimination
separately. Appeal courts, such as the Federal Court of
Australia or Canada, remit a number of cases for
redetermination due to an error of law on this ground.67
In Horvath,
for example, the Canadian Federal Court criticised the
approach of the Immigration
and Refugee Board (the Board). The Board had accepted
that the Roma applicants, if returned to Hungary, would
face discrimination in education, employment, access to
health care, and harassment generally in relation to
public services. It also accepted that there was
discrimination against Roma in virtually all of the
areas of concern to the lives of the applicants. The
Board did not, however, consider whether, cumulatively,
the treatment experienced by the applicants could give
rise to a well-founded fear of persecution.68
4.2
Too much emphasis on paragraph 54 rights?
Decision makers frequently refer to paragraph 54 of the
Handbook in cases of cumulative discrimination.69
Arguably, however, the three ‘rights’70
listed in this paragraph are not broad enough to
encompass all *I.J.R.L. 44
the cumulative effects of less serious measures of
discrimination that could reasonably justify a
well-founded fear of persecution. Indeed, UNHCR includes
them in its Handbook as a non-exhaustive list of
examples. Curiously, two of the rights listed - to
practise one's religion or access normally available
educational facilities - are quite narrow.
The
right to earn a livelihood is an accumulation of a
number of work-related rights,71 so a number
of less serious discriminatory measures impacting on
these rights could more readily be taken into account.
However, how do the rights listed in paragraph 54 enable
a decision maker to take into account the cumulative
effect of incidents such as harassment in the street by
passers-by,72 denial of service in shops,73
refusal of entry into restaurants and bars,74
being insulted and ignored on public transport,75
denial of access to public facilities such as swimming
pools76 or denial of financial assistance for
housing?77 The short answer is: they do not.
A
number of decision makers rely heavily, if not
exclusively, on the ‘substantially prejudicial
consequences’ test from paragraph 54 and the rights
listed therein. According to the applicants in an
Australian Federal Court case, for example, the RRT
interpreted paragraph 54 as
requiring
consequences ‘of a substantially prejudicial nature’ in
order for there to be persecution.78 In a
2004 Canadian case, of a Roma couple from Romania, the
Board explicitly said that ‘only when discrimination
seriously restricts an individual's right to earn a
livelihood, practice their religion or access normally
available educational facilities, does it amount to
persecution’.79 The Board explained that ‘the
applicants were able to obtain post-secondary education
and were continuously employed while in Romania, signs
the restrictions mentioned in the UNHCR Handbook were
not present’.80
This last case merits closer consideration. The Board
placed undue weight on the three rights listed in the
Handbook, without acknowledging that they are merely
examples. It did not, therefore, consider the
applicants' claims concerning mistreatment at school,
constant harassment at work, unjustified firing from
employment, vandalism of their store and the need to pay
bribes to State officials to keep their business
running. The male *I.J.R.L. 45
applicant claimed ‘to have been subjected to persecution
his entire life in Romania’.81 On appeal, the
Federal Court deemed the Board's decision unreasonable
in light of paragraph 55 of the UNHCR Handbook, as ‘it
did not recognise that acts of discrimination may give
rise to a reasonable fear of persecution if they produce
a feeling of apprehension in the mind of the targeted
person’.82 Whilst the court's reasoning was
based on the Board's failure to take various incidents
of violence and detention into account, as opposed to
the discriminatory incidents mentioned above, it is
still significant that this court, unlike many others,
highlighted the independent significance of paragraph
55.83
4.3
Particularly high standard in relation to economic,
social and cultural rights
According to Foster, the division of human rights into
four categories to assist in the measure of their
severity (with ESC rights as level three),84
‘has led some decision makers to treat socio-economic
rights as inferior to civil and political rights, such
that a much higher level of violation is required of
socio-economic rights violations in order to be
considered persecution pursuant to the Refugee
Convention’.85 This can have adverse
consequences for refugee applicants, especially in
discrimination cases. There is an increasing shift away
from organizing rights according to level in human
rights law generally, which will hopefully come to be
reflected in refugee law.
However, a number of cases support Foster's observation
that decision makers consider ESC rights to hold a
lesser status than civil and political rights. In the
appeal of a case concerning discrimination in housing
and employment against a Roma from Slovakia, for
example, a UK court applied a particularly high standard
of review.86 It said that ‘[t]he findings
about discrimination were not … themselves clearly
findings of such serious discrimination in employment
that it inevitably must have amounted to persecution’.87
Another paper on socio-economic rights similarly
identifies ‘a tendency to impose stringent standards
when violations of economic and social rights form the
basis of a persecution claim’.88 This section
is particularly concerned with the way in which some
decision *I.J.R.L. 46
makers assert that where the core minimum of a right is
being enjoyed, discriminatory enjoyment of that right is
not relevant to their assessment of persecution. Refugee
decision makers should, in such cases, draw from the
guidance of the ESCR Committee when evaluating whether
threats to economic, social and cultural rights amount
to persecution.
The
New Zealand RSAA has said that in cases involving a
violation of one or more rights in the ICESCR, ‘[t]he
breach must go to the core of the right and must
occasion serious harm. A breach at the margins of a
right or one that does not bring about serious harm,
will not reach the being persecuted threshold’.89
One case involved a Roma family from Hungary, whose
claim was based on ‘the cumulative effect of
longstanding and persistent discrimination in all areas
of their life, including, at times, serious
infringements of their fundamental rights including the
right to personal safety’.90 The RSAA
considered the applicants' claims in relation to
education, employment, health and housing by reference
to the ‘basic human dignity’ standard. However, it made
its assessment by considering the core content of the
relevant ICESCR rights, finding that ‘a sufficient
number of those core minimums are being enjoyed’.91
Despite acknowledging that societal discrimination
against Roma continued to hamper their fuller enjoyment
of their ICESCR rights,92 the Authority
determined that that this did not lead to serious harm
and would be unlikely to do so in the future.
Irrespective of whether the Authority's final decision
was correct in this case, its legal reasoning reflects a
lack of understanding about the centrality of
non-discrimination to the ICESCR. The ESCR Committee
recently clarified that ‘[n]on-discrimination is an
immediate and cross-cutting obligation in the Covenant.
Article 2(2) requires States parties to guarantee
non-discrimination in the exercise of each of the
economic, social and cultural rights enshrined in the
Covenant …’.93 Arguably, the exercise of
rights on an equal footing
is part of
the core minimum of economic, social and cultural
rights. Even without taking it this far, decision makers
should not just measure persecution by asking whether
the core minimums are being enjoyed: they should
consider the effect of the discrimination on the
meaningful enjoyment of those rights, and on the
individual applicant more generally.
Of
particular interest in relation to economic, social and
cultural rights is the right to education. Arguably, the
inclusion of ‘serious restrictions on … [one's] access
to normally available educational facilities’ in
paragraph *I.J.R.L. 47 54
of the Handbook indicates that UNHCR attaches
significance to non-discrimination in itself. This is
not a right as such, nor is it referred to as a right in
the Handbook. It derives, however, from the principle of
non-discrimination as applied to the right to education
in Article 13 of the ICESCR. The ESCR Committee has
explained that the precise and appropriate application
of Article 13 will depend on the conditions in a given
state. However, an essential feature of education ‘in
all its forms and at all levels’94 is that
‘education must be accessible to all, especially the
most vulnerable groups, in law and fact, without
discrimination on any of the prohibited grounds’.95
The
Committee further explains that secondary education must
be made ‘generally available’, which means ‘firstly,
that secondary education is not dependent on a student's
apparent capacity or ability and, secondly, that
secondary education will be distributed throughout the
State in such a way that it is available on the same
basis to all’.96 The words ‘access’ and
‘normally available’ in paragraph 54, therefore, should
be interpreted in light of this guidance. Consequently,
discrimination in the accessibility and availability of
educational facilities is a possible ‘substantially
prejudicial’ consequence for the purposes of paragraph
54, which could amount to persecution.
It
is surprising, however, to find that decision makers
rarely consider the reference to education in paragraph
54 of the Handbook. They tend to dismiss complaints
about discriminatory access to education for Roma
children, for example, without actually engaging with
what the right to education means, or what ‘access to
normally available’ facilities means. The UKAIT said in
a 2008 case of a Roma from Macedonia that it did not
overlook the ‘difficulty of Roma in educational and work
situations, but … those matters are level three rights
according to the classification by Professor Hathaway …
and are of extremely limited effect since educational
rights internationally are restricted to those applying
to primary education and it is accepted that there is no
right to employment as such …’.97 Leaving the
right to employment issue aside, this reflects a common
misconception of refugee decision makers: that the right
to education only entails free primary education.
Significantly, they ignore that discrimination in
relation to the accessibility, availability and
enjoyment of the right to education also constitutes a
violation of the ICESCR.
*I.J.R.L.
48
5. Broader approaches to discrimination cases
Some commentators and decision-makers, as well as UNHCR,
recognise that discrimination can have ‘substantially
prejudicial consequences’ that go beyond the
understanding that is usually attached to this term in
light of paragraph 54 of the UNHCR Handbook. Monaghan,
in a book about equality law, argues that ‘[t]he
wrongness of discrimination has come to be explained not
only in terms of unequal treatment with harmful
consequences, but as an intrinsic violation of dignity’.98
Indeed, whilst refugee decision makers ought to be
concerned with ‘harmful consequences’ (namely, the
violation of rights in light of paragraph 54), factors
such as the violation of dignity are also worthy of
consideration. Musalo suggests that when a decision
maker refers to paragraphs 54 and 55 of the UNHCR
Handbook, an additional factor that should be considered
is whether the discriminatory measures seriously limit
the individual from fulfilling his or her human
potential. She gives the example of an individual who is
able to earn a livelihood but, despite higher
qualifications, is consigned to menial work.99
This section will briefly argue that considerations such
as human dignity, quality of life, the meaningful
enjoyment of rights and the ability to lead a tolerable
and secure life can be taken into account in assessing
the impact of discrimination on applicants in refugee
cases. It will firstly set out some statements from
UNHCR and various cases that confirm that serious human
rights violations are not the only possible source of
persecution. It will then consider how decision makers
could use psychological harm to measure the impact of
discrimination on individuals.
5.1
Approaches to discrimination cases beyond serious rights
violations
It
has been recognised on a number of occasions that the
cumulative effect of discrimination can be measured in
ways other than serious human rights violations. In a
2002 statement concerning the proposed EU Qualification
Directive, the Assistant High Commissioner for
Protection explained that ‘[p]ersecution cannot and
should not be defined solely on the basis of serious
human rights violations. Severe discrimination or the
cumulative effect of various measures not in themselves
alone amounting to persecution, as well as their
combination with other adverse factors, can give rise to
a well-founded fear of persecution, or, otherwise said:
make life in the country of origin so insecure from many
perspectives for *I.J.R.L. 49
the individual concerned, that the only way out of this
predicament is to leave the country of origin’.100
The
following year, UNHCR submitted an
amicus curiae
brief in a House of Lords case that included an almost
identical statement, although it referred to life in the
country of origin becoming ‘so intolerable’ from many
perspectives, rather than ‘so insecure’.101
Grahl-Madsen has similarly said that ‘in a number of
postulated circumstances, life is made so difficult for
the putative refugee that he may reasonably claim it to
be “unendurable”. All the small annoyances to which a
person may be subjected can, as a matter of fact, add up
to persecution in this sense’.102
There are a number of cases in which decision makers
also suggest broader ways to measure the effect of
discrimination. In an oft-cited 1995 decision, for
example, the Canadian Federal Court framed the relevant
question as being whether the ‘discriminatory acts …
[are] sufficiently serious and occur over such a long
period of time that it can be said that the claimants'
physical or moral integrity is threatened’.103 Hathaway
points to an even earlier Canadian
Immigration Appeal Board
decision from 1977, where the Board stated that
‘persecution does not consist solely in physical
torture; an essential element of persecution is
harassment … Any repeated or sustained attack on not
only a person's physical integrity,
but also on his moral
integrity, constitutes persecution…’.104
What greater attack on one's moral integrity is there,
than being forced to tolerate persistent discrimination
in almost every facet of one's life?
Decision makers in other jurisdictions also suggest that
persecution can be measured more broadly. The UKAIT, for
example, has said that ‘[a]gglomeration can occur if the
evidence supports it by a concatenation of individual
denials of rights, for example the right to work, to
education, to health or to welfare benefits to such an
extent that it erodes the very
quality of life
in the result that such a combination is an
interference with a
basic human right to live a decent life …’.
This is an evidential matter, it is not an issue of law
in our view.105 There is no ‘human right to
live a decent life’ as such in the International Bill of
Rights. However, the Tribunal was concerned with the
impact of less serious forms of harm on the quality of
life. In Australia, the RRT considered human dignity in
an HIV case, where it *I.J.R.L.
50 commented that ‘[o]stracism from one's family
and community may amount to persecution when it is in a
severe form which
deprives a person of social contact and human dignity ’.106
5.2
Discrimination and psychological harm
One
way in which decision makers could approach the impact
of discrimination more broadly is to consider the
psychological harm it can cause to the individual
applicant. In relation to the violation of minorities'
economic, social and cultural rights over time, Ghanea
has commented that ‘the psychological impact of such
habitual denials of ESCRs goes largely unnoticed’.107
The New Zealand RSAA has said ‘it is clear that forms of
psychological or mental harm are included in the concept
of persecution’, though it acknowledges that not all
forms of harm are so included.108 In an
Australian RRT case, a homosexual Muslim citizen of
Jordan could see no future for himself in Jordan, unless
he was prepared to be very secretive. The Tribunal
considered that the cumulative effect of the risk of
harsh treatment by the Jordanian authorities, the risk
to his chances of appropriate employment and the
significant psychological effect on the applicant of the
very strong disapproval with which his conduct would be
met by his family and Jordanian society generally, were
sufficient to satisfy the Tribunal that there was a real
chance that the applicant will face serious harm,
amounting to persecution.109
Particularly interesting with respect to psychological
harm are two Australian cases from 2003, involving
members of the Sabean Mandaean religious minority from
Iran. The applicants in both cases described a lifetime
of insecurity and lack of control over their lives in
Iran, with one claiming that Sabean Mandaeans ‘are not
regarded as human beings’, asking ‘what sort of life do
you call this?’.110 The RRT dismissed both
cases as involving discrimination, not persecution. The
treatment they feared included refusal to allow them to
handle food in shops, harassment and insults, treatment
as infidels and unclean persons, deprivation of physical
contact in greetings, exclusion from clubs, denigration
of their religion (not recognized in Iranian law),
prohibition on the teaching of their religion in
schools, denial of access to university education,
denial of employment in government services and
employment discrimination generally.
*I.J.R.L.
51
In the first case, the Federal Court stated that ‘[i]f
people are, from an early age, considered by the great
majority of the people in the society in which they live
to be “dirty”, are positively treated as if they are
dirty, and if there is otherwise widespread and far
reaching discrimination against them, it requires no
degree in psychology to accept that this may well be
very harmful to mental well-being’.111 The
Federal Court therefore criticised the Tribunal for
failing to consider the appellant's claim that he and
his family ‘were likely to suffer considerable
discrimination, including in highly personally offensive
terms and that the cumulative effect of this was likely
to entail severe psychological harm’.112 It
reinforced the Tribunal's duty to consider whether this
harm amounted to serious harm within the Convention
definition of a refugee. The decision was set aside and
the matter remitted for reconsideration.
In
the second case, the Federal Court noted that the
Tribunal did not deal with all the matters raised by the
applicants, and that it was required to undertake a
cumulative analysis of how all the events ‘impacted
adversely on their lives by reason of their religion and
their membership of the Mandaean community’.113
This focus on the adverse impact of discrimination ‘on
their lives’ differed from the approach of the Tribunal,
as the latter acknowledged discrimination in areas like
education and religion, but said the applicants were not
actually denied an education or the right to practise
their religion. The reasoning of the Federal Court is
preferable, as it allows for a broader consideration of
the impact of discrimination.
6.
Conclusion
When discrimination in refugee law is dissected, we are
left with a clutter of usages and ideas. As the first
section revealed, the term ‘discrimination’ has several
meanings in refugee law. It goes to the core of the
entire regime, it is the word used to dismiss all
treatment that is not sufficiently serious to constitute
persecution and it is also used in reference to
non-discrimination provisions in international human
rights law instruments. UNHCR has developed guidance in
its Handbook, reaffirmed over the years, as to when
discrimination can amount to persecution. However, as
the second section explained, it is not possible to
deduce a clear test for decision makers, particularly
for measuring when the cumulative effect of ‘less
serious’ discriminatory measures can amount to
persecution.
*I.J.R.L.
52
An examination of state practice in the third section
confirmed that there is no coherent approach to such
cases: there are inconsistencies between, and even
within, jurisdictions. This section identified a number
of problems with the approaches of decision makers; from
their failure to undertake a cumulative analysis at all
to their strict interpretation and application of
paragraph 54 of the UNHCR Handbook, especially in
relation to ESC rights. In response, the fourth section
suggested that decision makers should adopt a broader
approach, taking factors such as human dignity and
quality of life into account.
The
principle that the cumulative effect of ‘less serious’
discriminatory measures can amount to persecution, even
where they would not in and of themselves, has been
accepted by UNHCR, academics and decision makers in all
states under consideration. However, to the author's
knowledge, this principle has not previously been
analysed in depth. This article has undertaken such an
analysis, but has not attempted to answer all of the
questions and issues it raises. It has sought, rather,
to draw attention to inconsistencies and problems in the
approaches of decision makers that merit further
consideration.
One
major issue that this article has identified is the
inconsistent use of the term ‘discrimination’. If
greater clarity were given to its meaning, perhaps
decision makers would not dismiss death threats as
‘discrimination’,114 for example, or comment
that racial discrimination is merely ‘morally
reprehensible’.115 If ‘discrimination’ is
used to refer to all less serious forms of harm on a
Convention ground, it should not be abused as a
catch-all term that can justify a failure on the part of
decision makers to properly engage with the cumulative
effect that discrimination can have on the individual,
and the effective enjoyment of his or her human rights.
Perhaps a lack of understanding as to the meaning of
‘discrimination’ goes some way to explaining why
decision makers cling so tightly to the guidance given
in paragraph 54 of the UNHCR Handbook. And perhaps a
lack of clarity as to the meaning of paragraph 55
explains their tendency to avoid it. This article has
reaffirmed on several occasions that persecution is, and
should remain, a flexible concept. Whilst adopting the
human rights approach to its interpretation is
undoubtedly a progressive step, this should serve to
expand our understanding of persecution, not restrict
it.
The
very purpose of undertaking a cumulative analysis should
be to consider the overall impact of discrimination on
an individual's life, not *I.J.R.L.
53 merely its impact on a limited selection of
narrowly-defined rights. The guidance given in paragraph
54 of the Handbook is useful, and should perhaps be the
starting point in discrimination cases. However,
decision makers should also interpret the impact of
discrimination on human rights in light of the
underlying purpose of those rights: to enable each
individual to live in equality and dignity.
1.
UNHCR Submission in Urim Gashi & Astrit Nikshiqi v. SSHD,
IAT, 22 July 1996 (13695) (unreported).
2.
UNHCR, ‘Handbook on Procedures and Criteria for
Determining Refugee Status’: UN doc. HCR/IP/4/Eng/REV.1,
1979 (reedited 1992), para. 53.
3.
Convention Relating to the Status of Refugees, adopted
28 July 1951, entry into force 22 Apr. 1954.
4.
UNHCR Handbook, above n. 2, para. 51.
5.
M.
Foster, International Refugee Law and Socio-Economic
Rights (Cambridge: Cambridge University Press, 2007),
33; J. Hathaway, The Law of Refugee Status (Toronto:
Butterworths, 1991), 107; G. Goodwin-Gill, The Refugee
in International Law, (Oxford: Clarendon Press, 1983),
39-40.
6.
M.
von Sternberg, The Grounds of Refugee Protection in the
Context of International Human Rights and Humanitarian
Law: Canadian and United States Case Law Compared (The
Hague: Martinus Nijhoff, 2002), 314.
7.
R
v. Immigration Appeal Tribunal and Another, Ex Parte
Shah, Islam (A.P.) v. Secretary of State for the Home
Department [1999] 2 AC 629, per Lord Steyn.
8.
UNHCR Handbook, above n. 2, para. 51. Note that there is
implicit reference in this provision to art. 33 of the
1951 Convention.
9.
Prasad v. INS 47 F.3d 336, 339 (9th Cir. 1995).
10.
Refugee Appeal No. 71404/99, RSAA, 29 Oct. 1999,
referring to Refugee Appeal No. 1039/93 Re HBS and LBY,
13 Feb. 1995, 19-20; and, Refugee Appeal No. 2039/93 Re
MN, 12 Feb. 1996, 14-16.
11.
E.g., Canada (Attorney-General) v. Ward [1993] 2 SCR
689.
12.
Migration Act 1958 (Cth).
13.
MZWPD v. Minister for Immigration & Multicultural &
Indigenous Affairs [2006] FCA 1095 (18 Aug. 2006), para.
82.
14.
Ibid., paras. 82-3.
15.
Ward, above n. 11, para. 733.
16.
Islam, above n. 7, per Lord Hoffman.
17.
Applicant A v. Minister for Immigration and Ethnic
Affairs (1997) 142 ALR 331, 354, per McHugh J.
18.
Ibid., 258.
19.
Foster, above n. 5, 94.
20.
Sagharichi v. Canada (Minister of Employment and
Immigration), [1993] FCJ No. 796 (QL), at para. 3
(emphasis added).
21.
K.
Walker, ‘Sexuality and Refugee Status in Australia’
(2000) 12 IJRL 175, 194.
22.
See, e.g., Refugee Appeal No. 71404/99, above n. 10.
23.
Immigration and Naturalisation Service v. Elias-Zacarias,
502 US 478 (1992) at 389; Ghaly v. Immigration and
Naturalisation Service, 58 F.3d 1425 (9th Cir. 1995)
1431.
24.
EN
(Roma) Macedonia CG [2002] UKIAT 04488, para. 17.
25.
Sagharichi, above n. 20, para. 3.
26.
Migration Act, above n. 12, s.91R(1).
27.
Bucur v. Immigration and Naturalisation Service, 109 F
3d 399 (7th Cir. 1997), cited in Foster, above n. 5,
213.
28.
MIMI v. Haji Ibrahim (2000) 175 ALR 585, para. 55
(emphasis added).
29.
Islam, above n. 7, per Lord Millett.
30.
Islam, ibid., per Lord Hope of Craighead.
31.
K.
Musalo, ‘Claims for Protection Based on Religion or
Belief’ (2004) 16 IJRL 165, 184.
32.
Korablina v. Immigration and Naturalization Service, 158
F.3d 1038 (9th Cir. 1998), para. 11.
33.
Bela v. Canada (Minister of Citizenship and Immigration)
2001 FCT 581.
34.
Ibid., para. 12 (emphasis added).
35.
Inter-American Court of Human Rights, Advisory Opinion
18: Juridical Condition and Rights of Undocumented
Migrants, 7 Sept. 2003, para. 101.
36.
The
Universal Declaration of Human Rights, adopted by
General Assembly resolution 217 A (III), 10 Dec. 1948.
37.
See, art. 2 of both Covenants.
38.
Committee on Economic, Social and Cultural Rights,
General Comment 20, E/C.12/GC/20, 2009, para. 2.
39.
Ibid., para. 7.
40.
Human Rights Committee, General Comment 18, CCPR/C/21/Rev.1/Add.1,
1989, para. 1.
41.
Ibid., para. 7.
42.
For
a detailed study on art. 26, see, T. Choudhry,
‘Interpreting the right to equality under art. 26 of the
ICCPR’, (2003) European Human Rights L.R. 24.
43.
Vienna Declaration and Programme of Action, adopted by
the World Conference on Human Rights 14-25 June 1993, UN
doc. A/CONF.157/23, 12 July 1993, para. 19
44.
Examples include Refugee Appeal No. 1039/93 Re HBS and
LBY, above n. 10, para. 26; Refugee Appeal No. 71427/99,
RSAA, 16 Aug. 2000, para. 55.
45.
Refugee Appeal No. 1039/93, ibid.
46.
Refugee Appeal No. 71427/99, above n. 44, para. 75.
47.
Ibid., para. 78.
48.
See, Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South-West Africa)
Notwithstanding Security Council Resolution 276 (1970),
ICJ Advisory Opinion, 21 June 1971.
49.
Fisher v. Immigration and Naturalisation Service, 79
F.3d 955, 963 (9th Cir. 1996), quoting Ghaly v.
Immigration and Naturalisation Service, 58 F.3d 1425,
(9th Cir. 1995) 1431.
50.
UNHCR Handbook, above n. 2, para. 69.
51.
Ibid., para. 68.
52.
1950 Statute of the Office of the United Nations High
Commissioner for Refugees, annex to General Assembly
Resolution 428 (v) of 14 Dec. 1950, para. 8. See also,
art. 35 of the 1951 Convention and art. II of the 1967
Protocol relating to the Status of Refugees.
53.
Immigration and Naturalisation Service v. Cardoza-Fonseca,
480 US 421 (1987), para. 439.
54.
Matter of Acosta, A-24159781, United States Board of
Immigration Appeals, 1 Mar. 1985, para. 1.
55.
MIMA v. QAAH of 2004 & Anor [2006] HCA 53, para. 76.
56.
Hanquan Liang v. Canada 2008 FC 450, para. 22.
57.
Machedon v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1104, para. 72.
58.
Namibia, above n. 48.
59.
UNHCR, ‘The International Protection of Refugees:
Interpreting Article 1 of the 1951 Convention Relating
to the Status of Refugees’, Geneva, Apr. 2001.
60.
Ibid., para. 17.
61.
UNHCR, ‘Guidelines on International Protection:
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, 7
May 2002, para. 14.
62.
Hanquan Liang, above n. 56, para. 18. See also, Sarmis
v. Canada (Minister of Citizenship and Immigration),
2004 FC 110, [2004] FCJ No. 109 (QL), at para. 17;
Bobrik v. Canada (Minister of Citizenship and
Immigration), [1994] FCJ No. 1364 (QL), at para. 22;
Retnem v. Canada (Minister of Employment and
Immigration), [1991] FCJ No. 428 (QL); Madelat v. Canada
(Minister of Employment and Immigration), [1991] FCJ No.
49 (QL)).
63.
Shirazi-Parsa v. INS, 14 F. 3d 1424, 1428 (9th Cir.
1994); Sangha v. INS 103 F.3d 1482, 1487 (9th Cir.
1997).
64.
Maksimovic v. Secretary of State for the Home Department
[2004] EWHC 1026.
65.
MZWPD, above n. 13, para. 84.
66.
Refugee Appeal No. 71427/99, above n. 4, para. 53(a).
Similar wording was used in Refugee Appeal No. 2039/93
Re MN, RSAA, 12 Feb. 1996, para. 16.
67.
Australian Federal Court examples include: MZWPD, above
n. 13; VTAO v. Minister for Immigration & Multicultural
& Indigenous Affairs [2004] FCA 927. Canadian Federal
Court examples include: Horvath v. Minister of
Citizenship and Immigration 2001 FCT 398; Oscar Castillo
Ramirez, Hector Antonion Viccon Palacis v. The Minister
of Citizenship and Immigration 2008 FC 466; Bursuc v.
Canada (Minister of Citizenship and Immigration) [2002]
FCJ No.1251. A US example is Poradisova v. Gonzales, 420
F 3d 70 (2nd Cir. 2005).
68.
Horvath, ibid., paras.16-18, per Justice McKay.
69.
E.g., Kord v. Minister for Immigration and Multicultural
Affairs [2001] FCA 1163; Refugee Appeal No. 72/92, RSAA,
12 Aug. 1992; Hanquan Liang, above n. 56; Refugee Appeal
No. 2039/93, NZ:RSAA, 1996; Refugee Appeal No.74321,
RSAA, 19 Dec. 2005; Tazawa et al. v. The Minister of
Citizenship and Immigration 2007 FC 255; Application
Nos. T98-04585, T98-04586 & T98-04587, Immigration and
Refugee Board, Canada, 7 Jan. 2000.
70.
‘[A]ccess to normally available educational facilities’
and the right to earn a livelihood are not rights per
se, as discussed below.
71.
See, ICESCR, arts. 6 and 7.
72.
E.g., The Queen on the Application of Ragman v. Special
Adjudicator (2000) WL 1841637.
73.
E.g., Bela, above n. 34.
74.
Reported as a problem in Immigration and Refugee Board
of Canada, ‘Czech Republic: Fact-Finding Mission Report
on the Situation and Treatment of Roma and Potential for
Internal Relocation’, July 2009.
75.
E.g., Bela, above n. 33.
76.
E.g., Application Nos. TA7-13448, TA7-13529 & TA7-13530,
Immigration and Refugee Board, Canada, 28 July 2008.
77.
E.g., Refugee Appeal Nos. 75940, 75941, 75942 & 75943,
RSAA, 15 Oct. 2007.
78.
Kord, above n. 69, para. 11.
79.
Machedon, above n. 57, para. 27.
80.
Ibid., para. 28.
81.
Ibid., para. 5.
82.
Ibid., para. 46.
83.
Ibid., para. 74.
84.
See, e.g., J. Hathaway, The Law of Refugee Status (Butterworths,
Toronto, 1991) 106-11.
85.
Foster, above n. 5, 127.
86.
R
v. IAT 2000 WL 1791625, Queen's Bench Division (The
Administrative Court).
87.
Ibid., para. 26.
88.
K.
Jastram, A. Mactavish and P. Mathew, ‘Violations of
Socio-Economic Rights as a Form of Persecution and as an
Element of Internal Protection’, International
Association of Refugee Law Judges Human Rights Nexus
Working Party Paper, prepared Sept. 2008 for the IARLJ
8th World Conference, Jan. 2009, Cape Town, 2.
89.
Refugee Appeal No. 76015, RSAA, 14 Nov. 2007, para. 37.
90.
Refugee Appeal Nos. 75940, 75941, 75942 & 75943, RSAA,
15 Oct. 2007, para. 22.
91.
Ibid., para. 100.
92.
Ibid., para. 94
93.
General Comment 20, above n. 38, para. 7.
94.
Committee on Economic, Social and Cultural Rights,
General Comment 3 E/C.12/1999/10, 1999, para. 6.
95.
Ibid., para. 6(b).
96.
Ibid., para. 13.
97.
EN
(Roma) Macedonia CG [2002] UKIAT 04488, para. 14.
98.
C.
Costello, Book Review, Equality Law, (2008) Public Law,
619.
99.
Musalo, above n. 31, 184.
100.
Statement by Ms. Erika Feller, Director, Department of
International Protection, UNHCR, Brussels, Strategic
Committee for Immigration, Frontiers and Asylum, 6 Nov.
2002.
101.
N.
Blake QC and T. Eicke, ‘UNHCR Case for the Intervener’,
Sepet & Anor v. SSHD [2003] UKHL 15.
102.
A.
Grahl-Madsen, The Status of Refugees in International
Law (A. W. Sijthoff, 1966), 213-15.
103.
NK
v. Canada, Federal Court Trial Division, 9 June 1995,
para. 21 (emphasis added).
104.
Juan Alejandro Araya Heredio, Immigration Appeal Board
Decision 76-1127, 6 Jan. 1977, at 6-7, per J. P. Houle
(emphasis added).
105.
Secretary of State for the Home Department v. Gujda, IAT,
5 Aug. 1999, Case No. CC/59626/97 (unreported), cited in
Foster, above n. 5, 214.
106.
N94/04178 RRTA, 10 June 1994 (emphasis added).
107.
N.
Ghanea, ‘Repressing Minorities and Getting Away With It?
A Consideration of Economic, Social and Cultural Rights’
in N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples
and Self-Determination: Essays in Honour of Patrick
Thornberry (Leiden, Martinus Nijhoff Publishers, 2005),
194.
108.
Refugee Appeal No. 71404/99, above n. 10.
109.
N99/27638 [2000] RRTA 766 (28 July 2000).
110.
SBAS v. Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCA 528, para. 34.
111.
SCAT v. Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCAFC 80, para. 21.
112.
Ibid., para. 23.
113.
Ibid., para. 59.
114.
Bela, above n. 33.
115.
Fisher, above n. 49 |
