“Even though gender is not specifically referenced in the refugee definition, it is clear that gender can influence or dictate the type of harm, or persecution experienced, and the reasons for that treatment. The main problem facing women asylum seekers within Canada is the failure of decision makers to incorporate gender related claims of women into the interpretation of the existing enumerated grounds and their failure to recognize the political nature of seemingly private acts of harm to women. To remedy these difficulties, Canada has established Guidelines for women refugee claimants fearing gender related persecution. So far, the intent seems to be working.”
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Over the past few decades, there have been changes in the international migration trends in which more women move from one country to another. This is a shift from the past where women normally moved to join their spouses or family members in the countries. The trend has been termed as the feminization of the international migration. The feminization has brought a new dimension in terms of the implications for the women migrants (Yinger par. 1).
For instance, with the increase in female refugees and migrants, there are increased challenges that relate gender-related exploitation and abuse of the women. A case in point, gender can dictate the experience of the asylum seeker, such as persecution because women are more vulnerable to many types of insecurities such as gender violence and sexual abuse (Freedman 4). As such, International Refugee Board has provided directives to host countries in order to protect women who genuinely seek asylum. In Canada, the legislation regulating refugees and migrants is the Immigration and Refugee Protection Act (IRPA) that was amended in 2014 (Colaiacovo 122). The act enumerates grounds under which a woman seeking asylum can be protected.
Gender Persecution and Immigration and Refugee Protection Act (IRPA)
Many women lack state protection on arrival to their destinations despite their vulnerability. For example, women find themselves being forced to abide by their countries’ of origin customs that they are not comfortable with. Other forms of persecution are due to religion, political opinion, nationality, race, and gender rated violence. Even though these are the same challenges encountered by men, women face the persecution differently. As such, International Refugee Board and UNHCR have attempted to devise guidelines to be used by member countries to protect women (Ramirez 5). The aim of the guidelines is to provide a legal framework and a procedural guidance that can be applied to analyze gender-related claims raised by the women. In 1993, Canada became the first country to come up with guidelines to address claims made by women refugees. The guidelines are provided in the Immigration and Refugee Protection Act (IRPA).
The Act defines the different classes of immigrants and the enforcement that pertains to the classes. According to Center for Gender & Refugee Studies, the Act does not explicitly refer to gender-based persecution (14); however, it requires the decision makers to come up with reasoned justifications by following guidelines as provided for by the Canadian Immigration and Refugee Board. The guidelines commonly referred to as ‘Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution’, outlines that women are entitled to ‘belong to a gender-defined social group’. These guidelines to extent provide a haven for the women as they form the basis for attaining Convention refugee status in Canada. The guidelines stem from directives issued by the Immigration and Refugee Board (IRB); the guidelines are not binding authorities, but they are persuasive. In the case of Canada, the federal court has supported the use of the guidelines in cases involving women claimants who allege persecution due to being in a particular social group, religion, race, or customs that may discriminate against them.
Summary of Cases
There are various allegations made by women as they seek protection from different forms of persecution. Some of the claims may have a positive outcome, which allows the women to apply for permanent residence and others have negative outcomes. Processing of the claims and determination is made by Refugee Protection Division (RPD), and in the case of claimant’s dissatisfaction, an appeal can be made to Refugee Appeal Division (RAD) which does the adjudications to determine whether RPD followed the laid down procedures in coming up with its decisions. The following is a summary of six cases and the determination (See Appendix A).
Case no. 97077 involved an appeal by a Haitian woman who had claimed that if she were to go back to her country, she would be mistreated or threatened by people who attacked her in the past and could be raped, but RPD denied her Convention refugee. In the appeal, RAD pointed out that the RPD did not consider the harmful elements that may befall the lady and the truthfulness of her story. Therefore, RAD noted that RPD had failed to conduct sufficient analysis; RAD determined that the lady was a Convention refugee. The second case (no. 93012) is about a Nigerian lady who claimed that she feared going back to Nigeria due to violence from her spouse threats and by a chief. These claims were found not to be credible by RPD; thus, she was requesting RAD to set aside the decision made by RPD. However, RAD found that the appellant was not a Convention refugee and did not require protection.
The third case (no. 94385) involved a woman from Greece who alleged that she was being abused by her Canadian boyfriend she had visited in 2013. She feared going back to her home country because she feared her ex-boyfriend. RPD determined that she was not a Convention refugee as per provisions of section 96 of IRPA. The fourth case (no. 90749) entailed an appeal by citizens of Afghanistan after their claim of fear of persecution by a man believed to be a member of Taliban was denied by RPD. They alleged that the Taliban man would force the female appellant to marry him and kill the other appellants, based on IRPA guidelines RPD found their claims to be insufficient. On the appeal, RAD stated that the appellants were Convention refugees.
The fifth case (no. 83459) was about a Haiti woman who sought protection under section 96 and 97 of IRP act. First, she alleged fear of persecution because of being a member of a social group, i.e., being a woman and secondly, she feared persecution due to her family ties in which the father had imputed political opinions. Even though the possibility of persecution was found on the basis for belonging to a particular social group, RPD did not find the Haitian claim credible based on her familial affiliation; hence, the allegation was rejected. Finally, the sixth case (no. 96287) involved an appeal by a citizen of Cameroon against RPD’s decision to deny her asylum. She had claimed her ex-husband and his brother had threatened to kill her if she dared report the abuse they had subjected. The abuse included partner swapping and prostitution. RAD allowed the appeal and referred the case to RPD for redetermination. Appendix B is a further analysis of some of the cases.
Analysis of Four Cases
In the case no. 97077 (CA IRB) RAD noted that RPD had failed to conduct sufficient analysis as provided in subsection 111(1) of IRPA; RAD determined that the woman was a Convention refugee. In this case, RAD invoked different provisions that are provided under the IRPA subsections 99 (3.1), 111.1(1). As a result, the appeal incorporated gender-related claims of women into the interpretation of the existing enumerated grounds which brought into perspective the possibility of persecution. Therefore, based on this case, I agree with the statement. This is because at first the woman was denied protection but on appeal, proper guidelines were used which found her deserving the protection. Just as in the first case, case no. 90749 (CA IRB) the adjudication relied on provided guidelines of IRPA section 111(1) (b) to come to a conclusion that the Afghans required protection. It is important to note that in Canada, the protection of the refugees is not confined by legal or technical rules of evidence.
The basis for the determination is informed by the rationale that a claim may be considered credible based on the circumstance; the Refugee Board cannot reject a claim because it is based on hearsay, it has the mandate to provide evidence to disqualify story (Gerard and Pickering 339). In the incidence that the claimant swears an affidavit that the facts being provided are correct, it compels the board to have the presumptions that the said claims are true. Disqualification of such evidence should be based on valid reason. Credibility can be based on the manner in which a claimant has narrated a particular story; therefore, it can be seen that credibility for protection is anchored on balance of probabilities, in this case, RPD made a mistake in the determination of credibility. However, RAD applied reason and used the IRPA provisions to set aside the RPD decision.
These two cases with positive outcomes signify a milestone in protecting women from harm. Even though the women were found not to deserve the protection, the appeals applied the necessary guidelines that took into considerations the circumstances facing the women. The cases denote that Canada has taken appropriate measures to address some of the problems facing women asylum seekers. Therefore, to some extent, it can be argued that the country has recognized the political nature of the seemingly private acts of harm to women by establishing guidelines for women refugee claimants fearing gender-related persecution. As such, so far, Canada’s intent seems to be working.
In the case no. 83459 (CA IRB), RPD denied the woman a Convention refugee on basis that there were no credible evidence as provided in the IRPA sections 96 and 97. UNHCR asserts that a refugee should have a well founded fear of being persecuted based on reasons of religion, political opinion, membership to a particular social group, nationality or race and cannot return home because of such fears. Further, the Canadian guidelines acknowledge that a person is in need of protection if the Refugee Board finds that denying such person the asylum; it will expose him or her to grave danger of being persecuted. For example, if that person is likely to be tortured, or at risk of cruel or unusual treatment, she ought to be protected.
In this case, the tribunal found that there was a high possibility of persecution due to being a member of a particular social group, but went ahead to reject her appeal. The tribunal overlooked the provisions of IRPA section 97. On this basis, I hold the view that the statement is partly applicable to this case. For instance, it shows the inability of the “decision makers to incorporate gender-related claims of women into the interpretation of the existing enumerated grounds and their failure to recognize the political nature of seemingly private acts of harm to women.” On the other hand, the fact that the tribunal acknowledged the possibility of serious persecution due to her gender affiliation showed that there are efforts to remedy the challenges related to gender abuse.
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Finally, in the case 94385 (CA IRB) there is evidence that the required guidelines were followed, and hence it fully conforms to the assertions provided in the statement. It is worth noting that for one to enjoy the protection, she must qualify the definition of a Convention refugee, and in this case, the circumstances under which the woman sought asylum did not provide grounds that Greece cannot protect her from the ex-boyfriend.
Canada provides refugee protection to people who fear persecution and other related dangers that they are likely to face in their home countries or just in Canada. The persecution may be torture or unusual treatment. It is provided that a woman who seeks protection from gender-related fear of persecution should be able to determine the linkage to gender affiliation; the said persecution should be based on the enumerated grounds in IRPA section 96 and 97. It is worth noting that Canada does list gender as one of the grounds for granting a Convention refugee status. However, women with well-founded fear of being persecuted due to the combination of the laid down grounds can be protected. From the analysis of the four cases, it can be deduced that parts of the statement apply and parts do not depending on the circumstances. For instance, decision makers especially the RPD tribunal erred in examining some circumstances that warranted protection while in others it was correct in its determinations.
Center for Gender & Refugee Studies. Review of Gender, Child, and LGBTI Asylum Guidelines and Case Law in Foreign Jurisdictions. 2014. Web.
Colaiacovo, Innessa. “Not just the facts: adjudicator bias and decisions of the immigration and refugee board of Canada (2006-2011).” Journal on Migration and Human Security 1.4 (2013): 115-122. Print.
Freedman, Jane. “Sexual and gender-based violence against refugee women: a hidden aspect of the refugee “crisis”.” Reproductive Health Matters 1.1 (2016):1-4. Print.
Gerard, Alison, and Sharon Pickering. Gender, Securitization and Transit: Refugee Women and the Journey to the EU. Journal of Refugee Studies 27.3 (2014): 338- 359.
Ramirez, Judith. “The Canadian Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.” Refuge: Canada’s Journal on Refugees 14.7 (1994): 1-5.
Yinger, Nancy. Feminization of Migration. Washington D.C.: Population Reference Bureau, 2006. Web.
Appendix A: Summary of Six Cases
|CanLII Number (IRB)||Publication date||Hearing |
|Place of Hearing||Persons on Tribunal||Outcome||Link|
|97077 (CA IRB)||2014-01-10||2014-01-10||Montréal, |
|Panel: MeAlain Bissonnette |
Counsel for the Appellant(s): MeChantal Ianniciello
Appelant: N/A Haitian woman
|93012 (CA IRB)||2014-11-25||2014-11-25||Toronto, Ontario||Panel: Luis F. Agostinho |
Counsel for the Appellant(s): Johnson Babalola, Barrister and Solicitor
Appellant: claims Nigerian citizenship
|94385 (CA IRB)||2014-12-15||2014-12-11||Toronto, Ontario||Panel: B. Lloyd |
Counsel for the Claimant(s: Dushahi Sribavan
Barrister and Solicitor
|90749 (CA IRB)||2014-04-09||2014-4-9||Toronto, Ontario||Panel: Milton Israel |
Counsel for the Appellant(s): Aviva R Basman
|83459 (CA IRB)||2014-12-18||2014-12-11||Montreal, Quebec||Panel: Linda Parker |
Counsel for the claimant(s): François Jean Denis
|96287 (CA IRB)||2014-06-19||Montréal, Quebec||Panel: MeAlain Bissonnette |
Counsel for the Appellant(s): MeClaude Whalen
Appendix B: Analysis of Four Cases
|Case no.||Grounds for seeking claim||Were Gender Guidelines for Women Refugee Claimants used?||Outcome|
|97077 (CA IRB)||– Mistreatment and threat by people who attacked her in the past. |
-possibility of being raped.
|IRPA subsection 111(1) and 99 (3.1), 111.1(1) used.||Positive|
|90749 (CA IRB)||-Forced marriage by a Taliban Man||IRPA section 111(1) (b)||Positive|
|83459 (CA IRB)||-belonging to a particular social group (being a woman) |
-Family ties in which the father had imputed political opinions
|Guidelines provided in IRPA section 96 and 97 not conclusively used.||Negative|
|94385 (CA IRB)||-Domestic violence from her Canadian fiancé. |
-Fear of being persecuted by her ex-boyfriend in the home country.
|Guidelines provided in IRPA section 96 and 97||Negative|