Committee on the Elimination of Discrimination against Women under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, Communication No. 39/2012, 57th sess, UN Doc CEDAW/C/57/D/39/2012 (10-28 February 2014) ('N v the Netherlands')
The High Court of Australia has unanimously held that the Minister cannot refuse to grant a protection visa to an individual who has validly applied for a visa on the sole basis that the individual is an “unauthorised maritime arrival”. In this case, as the Minister had refused to grant a protection visa to the plaintiff on this basis, and therefore failed to consider the plaintiff's visa application according to law as he had been directed to do by the Court, the Court issued a writ of peremptory mandamus requiring the Minister to grant the plaintiff a protection visa.
The author claimed that by rejecting her asylum claim and forcing her return to Mongolia, the Netherlands had exposed her to gender-based persecution and therefore breached articles 1, 2(e), 3 and 6 of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The Committee declared the complaint inadmissible on the grounds that the author was unable to substantiate her allegations.
The author of the communication, N, is a Mongolian citizen. In Mongolia she worked in a hotel and as a housekeeper for Mr L who repeatedly sexually and physically abused her. Twice she complained to police who questioned Mr L but later released him. Mr L told N that he had bribed the police and they would not protect her because of his wealth and influence. On one occasion, N escaped and sought refuge with a friend but two months later two men forcibly returned her to Mr L.
In June 2009, after escaping Mr L once again, N fled to the Netherlands. Her claim for asylum was rejected by the Immigration and Naturalisation Service on the basis that while her testimony was credible she had failed to show that Mongolia was unable or unwilling to protect her. Her appeals against the decision were rejected.
N brought a complaint to the Committee asserting that the Netherlands, in rejecting her claim for asylum, had failed to protect her from gender-based violence, sexual slavery and physical abuse by her former employer. She submitted that in doing so the state had violated articles 1, 2(e), 3 and 6 of CEDAW.
The Committee addressed the following questions in determining the admissibility of N’s complaint;
- whether N had exhausted all domestic remedies in the Netherlands;
- whether the claim was admissible ratione materiae; and
- whether N’s allegations could be substantiated.
The Committee held that N’s reliance on non-refoulement in her domestic asylum application was sufficient to exhaust all domestic remedies in the Netherlands. Under the non-refoulement principle states must not expel or return asylum seekers to territories where they risk persecution. The Committee noted that persecution in this context extends to gender-related persecution even where it occurs outside the sending state’s territory. Moreover, it found that gender-based violence is a form of discrimination against women. It was therefore sufficient for N to base her claim on non-refoulement even if, as the Netherlands asserted, she did not specifically raise gender-based discrimination.
The Committee held that it had subject matter jurisdiction (the communication was admissible ratione materiae) on the basis that gender-based violence constitutes discrimination against women. The Netherlands had asserted that the claim was inadmissible because N sought to broaden CEDAW to encompass non-refoulement and hold states responsible for extraterritorial violations. The Committee did not accept this argument and held that it was competent to assess the claim.
The question then arose as to whether N’s allegations could be substantiated. Article 4(2)(c) of the Optional Protocol to CEDAW requires that this question be answered affirmatively as a matter of admissibility. The Committee had to decide if there was sufficient information to determine whether N would face a “real, personal and foreseeable risk of serious forms of gender-based violence” upon return to Mongolia.
N had submitted that the Netherlands had violated articles 1, 2(e), 3 and 6. The Committee held that her claim under article 3, relating to the advancement of women, was not substantiated. Further, there was insufficient information to substantiate her claim under article 6 which addresses trafficking and prostitution.
Article 2(e) refers to states’ responsibility to “take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise”. Discrimination is broadly defined in article 1. The Committee found that N had failed to substantiate her claims of violation for the following reasons:
- N’s statement that she “feared” authorities would not protect her against Mr L did not sufficiently demonstrate that she would face a “real, personal and foreseeable risk” of this occurring.
- N failed to explain why Mr L presented an ongoing danger to her despite five years having passed.
- N failed to demonstrate a “real risk” that Mongolian authorities would be unable to protect her. She also failed to explain how they had failed to do so in the past.
- N failed to explain why she had not further pursued her complaints with police or prosecuting authorities in Mongolia.
- There was no evidence that Mongolian authorities had “acted in bad faith or had failed to react promptly to the author’s complaints”.
- Mongolia is a party to CEDAW and its Optional Protocol.
The Committee therefore held that N had not demonstrated that her personal circumstances created a real risk of persecution, nor had she substantiated her claim that Mongolia lacked an “effective legal system … capable of establishing, prosecuting and sanctioning Mr. L” and protecting her.
This decision is interesting as the author’s primary complaint was based on the principle of non-refoulement, which is enshrined in other international conventions such as the Refugee Convention and the Convention Against Torture (which also has an individual complaint mechanism), but is not expressly included in CEDAW.
The Committee’s declaration that the complaint was inadmissible rested on the author’s failure to provide sufficient information. Importantly, the Committee confirmed its jurisdiction to determine complaints against a state even where another CEDAW state party is primarily responsible for the violations. The fact that the author could have lodged a claim against Mongolia did not remove the Committee’s jurisdiction in a communication against the Netherlands.
However, the fact that Mongolia is a party to CEDAW was a factor that went against N’s claim that the state was unable or unwilling to protect her. Despite evidence of corruption, low levels of prosecutions for domestic violence, the absence of effective legal recourse and an entrenched failure to protect women in Mongolia, the Committee held that N had not substantiated her allegation. Therefore, while there is scope to bring a complaint to the Committee against a sending country for rejection of an asylum application, there is a high threshold to show that the country of origin is unable or unwilling to protect the applicant.
The full text of the decision can be found online here.
Erika Codognotto is a Law Graduate at King & Wood Mallesons.